We wrote in the March issue about the push by some to make major changes in the Federal Rules of Civil Procedure. Since then we have learned that more than 300 of the largest companies in the U.S., including energy, life sciences, and technology are supporting the proposed changes to the federal discovery rules. In fact, the corporate giants suggested further restrictions on the types of evidence destruction or loss that warrant sanctions. Hopefully, the rules committee for the U.S. Judicial Conference, the body of judges, lawyers and others that help set policy for federal courts, will not be unduly swayed by these politically powerful special interests. I don’t believe they will be.
In a letter to the committee, general counsel and executives for the companies praised the proposed changes, which they claim will improve the discovery requirements currently in place. They described these as inefficient, confusing and overly expensive. Among the signatories to the letter were the following companies: American International Group Inc., Bank of America Corp., BP America Inc., Exxon Mobil Corp., General Electric Co., Google Inc., Johnson & Johnson, Merck & Co. Inc., Microsoft Corp., NBCUniversal Media LLC, Toyota Motor Sales USA Inc. and Wal-Mart Stores Inc.
The companies expressed explicit support for the proposed changes to Rule 37€. That rule governs sanctions for litigants that fail to preserve information relevant to a case. Under the proposal, sanctions are limited to actions that “caused substantial prejudice in the litigation and were willful or in bad faith” or that “irreparably deprived a party of any meaningful opportunity to present or defend” against allegations. Based on our firm’s experience in litigation with some of these companies, I can say without reservation that these proposed changes are not needed. In fact, the sanctions for extreme discovery abuse should be made stronger.
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