FRCP Preservation LCJ Comment Final 111011

COMMENT Preservation – Moving The Paradigm Submitted to the Civil Rules Advisory Committee SUPPLEMENTING THE WHITE PAPER SUBMITTED TO THE 2010 LITIGATION CONFERENCE On behalf of Lawyers for Civil Justice DRI – Voice of the Defense Bar Federation of Defense & Corporate Counsel International Associate of Defense Counsel November 10, 2010Preservation – Moving The Paradigm SUPPLEMENTAL COMMENT TO THE WHITE PAPER: RESHAPING THE RULES OF CIVIL PROCEDURE FOR STTHE 21 CENTURY SUBMITTED TO THE 2010 LITIGATION CONFERENCE November 10, 2010 I. Introduction This Supplemental Comment is respectfully submitted to reemphasize to the Civil Rules Advisory Committee our view that: bold action is needed to fix real problems related to preservation of information in litigation; those problems exist for plaintiffs, defendants and third-parties; the problems, although real, are not readily quantifiable; and rule making solutions exist that do not violate the Rules Enabling Act. We also address the questions raised in the Discovery Subcommittee’s memorandum on “Preservation/Sanctions Issues.” stAs detailed in our White Paper, Reshaping the Rules of Civil Procedure for the 21 Century (May 2, 2010) (Reshaping the Rules), the current ad hoc patchwork of preservation obligations created by individual courts is creating burdens on litigants far beyond what anyone would consider reasonable. The current paradigm involving ...