July 09, 2013 Articles

Federal Spoliation Rule Moves Forward

The first in a two-part series examining court decisions involving spoliation

By Charles S. Fax

This article is the first of a two-part series on the draft amendment to Rule 37 by the Advisory Committee on Civil Rules that would introduce a uniform, nationwide set of standards for the imposition of spoliation sanctions. Part 1, originally published in the November 2012 issue of Litigation News and reprinted here with its permission, discusses conflicts in federal case law on spoliation sanctions that gave rise to the Advisory Committee’s decision to propose a uniform rule. Part 2 (forthcoming in the Fall 2013 Issue) will discuss the proposed amendment to Rule 37 that is expected to be released for review and public comment in August 2013.

In two recent columns, I addressed the proliferation of conflicting and inconsistent local court rules throughout the federal system and the consequent burdens imposed on counsel litigating in multiple jurisdictions. In a third column, I discussed the conflicting ways in which federal courts resolve spoliation issues. These comments convey a concern for clarity—a uniform standard for rules to guide counsel in all federal courts, promoting predictability, efficiency, greater adherence to the rules, and reduction of costs.

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