FRCP Preservation Rule Comment Corrected 040311 2

COMMENT Preservation – Moving the Paradigm to Rule Text Submitted to the Civil Rules Advisory Committee On behalf of Lawyers for Civil Justice April 1, 2011 1 Introduction This Comment is respectfully submitted to the Civil Rules Advisory Committee (“Committee”) to offer our views on suggested rule language that incorporates the necessary elements of a preservation rule. We have relied to a great extent in developing our proposal on the “Elements of a Preservation Rule” 1presented at the 2010 Litigation Conference at Duke Law School and the “Category 1 Detailed and Specific Rule Provisions” of the “initial set of drafts of the three categories of rule exemplars” presented in the Discovery Subcommittee’s “Preservation/Sanctions Issues” memorandum for the Committee’s 2 3April 4-5 meeting. As we said in our earlier comment (“Preservation Comment”), 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 do not here intend to re-plow the ground covered in our earlier Preservation Comment or in our 4White Paper, but it is worth rehearsing briefly how the current ad hoc patchwork of preservation obligations created by individual courts is creating ...