TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 28, 2016
RE: Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions
At the last meeting, the committee considered proposed amendments to Rule 37 based on the December 2015 amendments to Fed.R.Civ.P. 37. The committee decided to postpone consideration of the amendments because they represented a substantial change in practice. The committee requested that staff conduct additional research and work with SBAND to get comments from attorneys in the state.
Perhaps because these amendments are so new, staff was unable to locate any useful information on how other states are reacting to them. Staff did locate an ABA article, attached, that attempts to explain the purpose and operation of the amendments. The article states that the amendments were "an attempt to insert reasonableness and proportionality into the duty to preserve electronic evidence." The article explains that the previous language, which protects parties who engage in "routine good-faith operation" of their electronic information systems was not adequate to address all the issues arising out the vastly expanded use of electronically stored information.
Consistent with what the committee discovered during its discussions at the last meeting, the article also points out that reading the commentary to the amendments is essential in understanding them. The article states: "It is instructive to note that while Rule 37(e) consists of 130 words, it took the rules committee over 2,500 words to explain and interpret it."
A motion to amend the Rule 37 proposal was before the committee when it voted to postpone discussion at the last meeting. The attached Rule 37 draft contains the pending proposal, which would retain both the new language and the old "good faith" provision. The draft also contains an alternative paragraph developed by staff after listening to a recording of the committee discussion: the alternative would allow parties to present evidence of good faith as evidence of reasonableness rather than having good faith be an absolute defense to sanctions.