Finally, and perhaps most importantly, proposed Rule 37(e) weakens the ability of a party to obtain sanctions against a party who fails to preserve discoverable information. The proposed rule places the burden on the innocent party to prove that “it has been substantially prejudiced by the loss” of relevant information, even where the loss was the result of willful or intentional misconduct. A federal judge renowned for her expertise and fairness in discovery issues recently declared that “imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so.” Due to the asymmetric distribution of information relevant to a case, i.e., the defendant nearly always has much more of it than the plaintiff, the impact of this proposed rule would fall more harshly on plaintiffs. AFL’s comments will recommend that it should be rejected out of hand because the burden should be placed on the party who failed to preserve the information to prove that the innocent party was not prejudiced or irreparably harmed.
The proposed rules, if adopted, will be subject to implementation by the trial judge and, in those cases in which the plaintiff can afford to appeal an adverse discovery ruling critical to the success of the case, to the interpretation by an appellate court. Thus, it remains to be seen if the consequences of the proposed changes, which some might call draconian, come to pass.
The comment letter submitted by AFL Senior Attorneys will highlight several cases in which they have participated over the years that in many instances required multiple requests for relief from the court under the discovery rules in effect when the cases were litigated. The proposed rules, if adopted, will impose discovery limits that would make litigating similarly complex cases much more difficult (and expensive), especially for plaintiffs, and require much more active participation by the courts in the discovery process.
The comment letter will conclude by stating that plaintiffs, who already face steep hurdles to having their day in court even under current discovery rules will have much more difficulty in vindicating their individual and civil rights under the proposed rules, which, AFL Senior Attorneys believe, would unquestionably undermine the fairness of the discovery process.