During the week of January 27, ARMA International representatives briefed key staff counsels on the House and Senate Judiciary Committees on ARMA’s perspectives of the proposed amendment to the Federal Rules of Civil Procedure (FRCP). The Judicial Conference Advisory Committee on Civil Rules had earlier proposed a series of amendments to the FRCP and requested public comment by February 15, 2014. ARMA is preparing a public comment letter that it plans to submit.
Under the procedures governing the rulemaking process, any final changes adopted by the Judicial Conference must be approved by the U.S. Supreme Court, and Congress would have a six-month review period during which the House and Senate could vote to reject, modify, or defer the proposed rules.
Of specific interest to ARMA International are the proposed amendments to rules on the scope of discovery and sanctions for failure to preserve discoverable information.
ARMA International has indicated that changes proposed to Rule 26(b)(1) to define the scope of discovery in terms of proportionality will improve industry compliance with the Generally Accepted Recordkeeping Principles.
“When practically any piece of information could be considered relevant, a records manager is left second-guessing otherwise reasonable and efficient data retention policies,” ARMA stated in a draft letter to the Judicial Conference. “The clearer scope of discovery under the amended Rule will help records managers to develop information governance practices that further core organizational goals as well as assist counsel in providing quick, responsive answers to discovery requests.”
ARMA International is also encouraged by the proposed amendments to Rule 37(e), which would establish a national uniform standard requiring a showing of bad faith in most circumstances before an organization can be sanctioned for the inadvertent loss or destruction of information.
“The difficulty for information governance professionals exists when determining the proper scope of preservation and when information is lost or destroyed, through no fault of the organization,” the draft letter states. “The proposed amendments to Rule 37(e) will provide much needed guidance for organizations working to comply with the duty to preserve information relevant to litigation.”
ARMA International is also urging that Rule 37(e) not be limited only to sanctions for loss of electronically stored information. ARMA has long advocated for the need to ensure that the management of electronic documents be made a part of, and not isolated from or managed separately from, an organization’s overall records management program.