A prominent federal judge wasted little time to air her dissatisfaction with the proposed amendments to the Federal Rules of Civil Procedure (Rules) the exact day the period for public comment on the Rules opened. In lieu of following the formal process of submitting written comments to the proposed amendments the Honorable Shira Scheindlin, Federal District Court Judge for the Southern District of New York, provided her feedback in more dramatic fashion. She went out of her way to blast newly proposed Federal Rule 37(e) in a footnote to a recent court order in a case where she sanctioned a party for spoliation of evidence. The order, dated August 15, 2013, conspicuously coincides with the opening day for public comment to the newly proposed amendments to the Rules and likely riled some attorneys who have lobbied hard for this particular Rule change for years.
The facts relayed in Sekisui American Corporation v. Hart are not uncommon. In fact, most have likely heard this story repeat itself for a decade despite the passage of amendments to the Rules in 2006 and myriad case law guiding against such conduct. The short version of the story is that a group of employees leave their company, the company sues the former employees, discovery ensues, and emails are missing. Why? Because emails were deleted long after the duty to preserve electronically stored information (ESI) was triggered and now those emails are lost. The question then turns to whether and how the judge should rectify the missing email problem. Those familiar with some of Judge Scheindlin’s prior decisions know the answer to that question - sanctions.
Judge Scheindlin is not a renegade who issues sanctions regardless of the facts of the case. However, some believe her attempts to provide clarity for litigants in her courtroom sometimes go too far which stirs debate. Whether you agree with her decisions or not, Judge Scheindlin takes special care to meticulously articulate the facts of the case, identify the relevant legal authority, present the legal analysis, and then nail the offending party with sanctions when they screw up discovery.
That is exactly what happened in Sekisui and the order is worth a read. People new to eDiscovery will learn the basics of when to apply a legal hold, while more seasoned eDiscovery veterans will be treated to a stroll down “case law memory lane” that includes stories of eDiscovery train wrecks past like the Zubulake and Pension Committee decisions. If you don’t have the stomach to read the entire thirty-two page opinion, then read the nice article written by Law Technology News aptly titled: Scheindlin Not Charmed When Visiting Spoliation a Third Time for further background on the case.
What is striking about the case is that Scheindlin used the case and issues at hand as an opportunity to articulate her displeasure with the proposed amendments to the Rules. In particular, she calls out proposed Rule 37(e) in footnote 51 of the opinion where she explains:
“the proposed rule would permit sanctions only if the destruction of evidence (1) caused substantial prejudice and was willful or in bad faith or (2) irreparably deprived a party of any meaningful opportunity to present or defend its claims…. The Advisory Committee Note to the proposed rule would require the innocent party to prove that 'it has been substantially prejudiced by the loss' of relevant information, even where the spoliating party destroyed information willfully or in bad faith. 5/8/2013 Report of the Advisory Committee on Civil Rules at 47. I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, 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.”
Judge Scheindlin’s “Footnote 51” is almost certain to become a focal point of debate as the dialogue about the Rules continue. Not only did Judge Scheindlin ignite much of the early eDiscovery debate with her Zubulake line of decisions, she has also served on the Federal Rules of Civil Procedure Advisory Committee from 1998 to 2005. The fact that she is known as the Godmother of eDiscovery in some circles illustrates that her influence over the rule making process is undeniable. The time for public comment on the Rules closes on February 15, 2014 and the Godmother of eDiscovery has thrown down the gauntlet once again. Let the games begin.