Judge Shira Scheindlin, Senior Judge for the Southern District of New York, has been long considered the leading jurist and a pioneer of e-discovery jurisprudence. She authored the Zubulake I-V opinions, which are mandatory reading for all litigators certainly in federal courts and, in my view, in state courts as well. So you know it won’t end well for a plaintiff accused of spoliation when Judge Scheindlin issues an opinion beginning with the following: “A decade ago, I issued a series of opinions regarding the scope of a litigant’s duty to preserve electronic documents and the consequences of a failure to preserve such documents falling within the scope of that duty… Such obligation should, at this point, be quite clear especially to the party planning to sue.”
On the same day that the public comment period opened for proposed amendments to FRCP 37(e), Judge Scheindlin, in her opinion and order reversing a Magistrate Judge’s refusal to award sanctions in Sekisui American Corp. v. Hart, gave this criticism of the amended change:
[T]he 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 of 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. 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 cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so.
She went on to say:
To shift the burden to the innocent party to describe or produce what has been lost as a result of the opposing party’s willful or grossly negligent conduct is inappropriate because it incentivizes bad behavior on the part of would-be spoliators. That is, it “would allow parties who have destroyed evidence to profit from that destruction.”
(Internal citations omitted.)
Judge Scheindlin also commented on the degraded format of printed emails that were produced by the party responsible for destroying ESI, and points to a very cool new tool developed by MIT Media Lab called Immersion. Try it out yourself: https://immersion.media.mit.edu/.