A Funny Thing Happened on the Way to - Or the Discovery Subcommittee's Revised Rule 37(e) Returns to "Gotcha" Litigation (PDF)
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The Discovery Subcommittee of the Advisory Committee on Civil Rules proposed significant revisions to the discovery-related rules, especially to Rule 37(e). The Subcommittee recommended that a court may impose an adverse jury instruction for failing to preserve evidence under Rule 37 absent a showing of prejudice, and at the same time it has expansively broadened a party's liability to preserve evidence even if no showing of prejudice is made.
John K. Rabiej is the Director of the Duke Law Center for Judicial Studies. Before that he was Executive Director, Director of Judicial Outreach, of The Sedona Conference©. For 19 years, he was the Chief of the Rules Committee Support Office, Administrative Office of the United States Courts. The views expressed by Mr. Rabiej do not necessarily represent the official positions of the Dule Law Center for Judicial Studies.
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