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Revised Rule 37(e) and Committee Note Published in Anticipation of Standing Committee Meeting

Brittany Kauffman Posted in Rule One

In advance of this week’s Standing Committee meeting on May 29 and 30, the Advisory Committee on Civil Rules has drafted a new Committee Note to accompany its newly revised proposed Rule 37(e). This is another step forward in the long process of adopting revisions to the Federal Rules of Civil Procedure that began at the Duke Conference in May of 2010. Proposed Rule 37(e) underwent significant revisions during the Advisory Committee’s meeting in April, and the Advisory Committee has now carried these revisions through to the Committee Note, which has been published in the Agenda Book for this week’s meeting.

The Committee Note recognizes the need for an updated rule given the exponential growth in the volume of electronically stored information, and the significantly different standards for imposing sanctions or curative measures across the circuits. The Note provides additional insight into the new rule’s “reasonable steps to preserve” language: “This rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.”

For further drill down, Bloomberg BNA provides this blow-by-blow of the Advisory Committee’s note.