The Judicial Conference of the United States on September 16 approved and forwarded to the Supreme Court for its consideration a significant package of changes to the Federal Rules of Civil Procedure. If adopted by the Supreme Court, the rules will take effect December 1, 2015, unless Congress votes to reject them.
According to an announcement by the Conference, the new changes, which were four years in the making, are designed to promote the just, speedy, and inexpensive resolution of civil suits. “The proposed changes seek to reduce litigation costs and delays by encouraging early case management by judges, increased cooperation among the parties, and the proportional use of discovery based on the needs of the case,” the announcement said.
Of particular interest to records and information management professionals is an amendment clarifying the remedies available for the loss of electronically stored information. An advisory committee initially proposed a national uniform standard requiring a showing of bad faith in most circumstances before an organization could be sanctioned for the inadvertent loss or destruction of information.
In its February 14, 2014, comment letter to the advisory committee, ARMA International noted that such a uniform national standard would provide much needed guidance for organizations working to comply with the duty to preserve information relevant to litigation.
“As the leading international organization dedicated to information governance, ARMA has a strong interest in efforts to provide a consistent and predictable national standard applicable to the preservation of information relevant to civil litigation, amendments regarding the possible sanctions for unintentional failures to preserve, and a clear, reasonable definition of the scope of discovery in civil litigation,” the letter stated.
However, the advisory committee ultimately concluded that such a rule was unfeasible and instead drafted a rule focused on court actions “to cure prejudice caused by the loss of electronically stored information that cannot be remedied by restoration or replacement of the lost information,” and providing that “the measures be no greater than necessary to cure the prejudice.”