Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom
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Catholic University Law Review Volume 61 Issue 3 Spring 2012 Article 4 2012 Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Robert A. Weninger Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Procedure Commons, and the Legal Education Commons Recommended Citation Robert A. Weninger, Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom, 61 Cath. U. L. Rev. 775 (2012). Available at: https://scholarship.law.edu/lawreview/vol61/iss3/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Cover Page Footnote J. Hadley Edgar Professor of Law, Texas Tech University School of Law. I thank Richard L. Marcus for reading and commenting on this Article. I also thank my colleagues Jennifer Bard and Jarod Gonzales for their comments and Benjamin G. Robertson, J.D., 2012, for his excellent assistance in research and citation. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol61/iss3/4 ELECTRONIC DISCOVERY AND SANCTIONS FOR SPOLIATION: PERSPECTIVES FROM THE CLASSROOM Robert A. Weninger+ I. CHOOSING THE CHAPTER ON SPOLIATION AND SANCTIONS FOR CLASSROOM USE..................................................................................779 II. THE CHALLENGES TO AMERICAN DISCOVERY IN A DIGITAL ERA.............782 III. THE MAJOR DETERMINANTS OF ESI SPOLIATION: CULPABILITY AND PREJUDICE ....................................................................................784 IV. THE ADVERSE-INFERENCE INSTRUCTION ................................................786 A. Two District Court Decisions Granting an Adverse-Inference Instruction.........................................................................................787 1. Pension Committee: Presuming Relevance and Prejudice when a Party Is Grossly Negligent...........................................788 2. Rimkus: An Adverse-Inference Instruction Requires a Showing of Relevance ............................................................................790 B. The Casebook Example: Connor v. Sun Trust Bank..........................792 1. The Trigger Date: When the Duty to Preserve Arises .................796 2. Relevance and Prejudice..............................................................798 3. Rule 37(e): A Safe Harbor from Spoliation .................................800 V. WHERE DO WE GO FROM HERE?..............................................................801 VI. CONCLUSION............................................................................................805 In 2009, Professor Richard L. Marcus said, “electronic discovery is the hottest topic in litigation today.”1 The December 2006 amendments to the Federal Rules of Civil Procedure were the first to employ a “full package of E-Discovery rule[s].”2 Although the increased usage and acceptance of e-discovery has brought benefits to the discovery process, the nature of + J. Hadley Edgar Professor of Law, Texas Tech University School of Law. I thank Richard L. Marcus for reading and commenting on this Article. I also thank my colleagues Jennifer Bard and Jarod Gonzales for their comments and Benjamin G. Robertson, J.D., 2012, for his excellent assistance in research and citation. 1. Richard L. Marcus, Introduction to SHIRA A. SCHEINDLIN ET AL., ELECTRONIC DISCOVERY AND DIGITAL EVIDENCE: CASES AND MATERIALS 1 (2009). Professor Marcus, serving as a special reporter to the Advisory Committee on Civil Rules, was a primary drafter of the 2006 amendments to the Federal Rules of Civil Procedure, which specifically address the discovery of electronically stored information (ESI). Id. at 1 n.1. 2. See Richard L. Marcus, E-Discovery and Beyond: Toward Brave New World or 1984?, 236 F.R.D. 598, 604–05 (2006) (describing, contemporaneously to their enactment, how the e-discovery rule amendments of 2006 “could be the first big step into the world of digital litigation”). 775 776 Catholic University Law Review [Vol. 61:775 digitized information has also increased the risk and occurrence of evidence spoliation.3 The spoliation of evidence subverts the discovery process and the integrity of the courts.4 In the rapidly expanding universe of electronically stored information (ESI), some courts are concerned that the advent of e-discovery will lead to a flood of motions seeking sanctions for spoliation of evidence, thereby increasing the costs and delays of litigation.5 Additionally, rule makers are concerned with consistency among the federal circuits in addressing a wide range of spoliation issues.6 The Advisory Committee on Civil Rules and its Discovery Subcommittee are presently considering new 3. Shira A. Scheindlin & Kanchana Wangkeo, Electronic Discovery Sanctions in the Twenty-First Century, 11 MICH. TELECOMM. & TECH. L. REV. 71, 71–72 (2004) (explaining how digitized information is often deleted or overwritten in the normal course of business and is therefore more likely to be destroyed than hardcopies of information). The Second Circuit has defined spoliation as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). The trial judge has discretion to order sanctions and can determine the extent to which those sanctions are imposed. Id. (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). This authority is a product of the Federal Rules of Civil Procedure and the inherent powers of the court. Id. 4. SHIRA A. SCHEINDLIN ET AL., ELECTRONIC DISCOVERY AND DIGITAL EVIDENCE IN A NUTSHELL 218, 236 (2009) (discussing the many opportunities for evidence to be destroyed and the associated sanctions). 5. See, e.g., Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 607 (S.D. Tex. 2010). However, research by the Federal Judicial Center suggests that sanctions motions for spoliation are relatively rare. EMERY G. LEE, III, FED. JUDICIAL CTR., MOTIONS FOR SANCTIONS BASED UPON SPOLIATION IN CIVIL CASES: REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 3–4 (2011), available at http://www.fjc.gov/public/pdf.nsf/lookup/leespoli.pdf/$file/leespoli.pdf. The scope of the study included court records in 131,992 civil cases from nineteen federal district courts between 2007 and 2008. Id. at 4. The study found that sanctions motions were filed in only 153 cases. Id. at 8. Of the sixty-five sanctions motions actually ruled on in cases involving ESI, thirty-four percent were granted and sixty-six percent were denied. Id. The most commonly imposed sanction was an adverse-inference instruction. Id. at 9. The study showed that cases with sanctions motions were more contentious and had longer disposition times, averaging 649 days compared with 253 for civil cases in general. Id. Moreover, 0.6% of civil cases in general were disposed of at trial, while a remarkable 16.5% of the spoliation cases went to trial. Id. 6. See Memorandum from the Judicial Conference Subcomm. on Discovery, Advisory Comm. on Civil Rules to Mini-Conference on Pres. & Sanctions 1 (Sept. 9, 2011), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_ Materials/Preservation-Sanction%20Issues.pdf [hereinafter Memo on Pres. & Sanction Issues] (noting the problems resulting from overly broad preservation obligations and inconsistent standards for imposing sanctions across the country); see also Dallas Conference on Preservation/Sanctions (9/9/11), ADMIN. OFFICE U.S. CTS., http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview/DallasMiniConfSept20 11.aspx (last visited Apr. 13, 2012) [hereinafter Dallas Conference] (providing a general description of the Dallas Conference and research submitted). 2012] Electronic Discovery and Sanctions for Spoliation 777 rules to address the preservation of ESI and sanctions for its spoliation in civil cases.7 Currently, the trial judge has discretion to issue sanctions for spoliation.8 However, a 2004 survey of federal and state court rulings regarding spoliation of ESI revealed that courts determined sanctions largely based on the alleged spoliator’s level of culpability and the degree of prejudice suffered by the innocent party.9 One of the more commonly issued sanctions for spoliation is an adverse-inference instruction.10 Although it is not the harshest sanction in a court’s arsenal, an adverse-inference instruction is nonetheless severe enough to end a lawsuit.11 Two 2010 spoliation decisions—Pension Committee of University of Montreal Pension Plan v. Banc of America Securities, LLC12 and Rimkus Consulting Group, Inc. v. Cammarata13—exemplify the split between the Second and Fifth Circuits, among others. The decisions highlight the circuits’ differing opinions on two issues: (1) the allocation of the burden to prove relevance and prejudice in spoliation cases and (2) the level of culpability required for an adverse-inference instruction or sanctions of similar severity.14 The decisions also illustrate the varying approaches to the respective