Fordham Law Review Volume 78 Issue 1 Article 1 2009 The Philip F. Reed Lecture Series, Panel Discussion, Sanctions in Electronic Discovery Cases: Views From the Judges Hon. John M. Facciola Hon. Elizabeth D. Laporte Hon. Loretta A. Preska Hon. Shira A. Scheindlin Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska, and Hon. Shira A. Scheindlin, The Philip F. Reed Lecture Series, Panel Discussion, Sanctions in Electronic Discovery Cases: Views From the Judges, 78 Fordham L. Rev. 1 (2009). Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss1/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Philip F. Reed Lecture Series, Panel Discussion, Sanctions in Electronic Discovery Cases: Views From the Judges Cover Page Footnote This Panel Discussion was held on February 24, 2009, at Fordham University School of Law. The text of the Panel Discussion transcript has been lightly edited. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol78/iss1/1 FORDHAM LAW REVIEW Vol. 78 October 2009 No. 1 CONTENTS THE PHILIP D. REED LECTURE SERIES Panel Discussion SANCTIONS IN ELECTRONIC DISCOVERY CASES: VIEWS FROM THE JUDGES ..... Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska & Hon. Shira A. Scheindlin ESSAY A MATTER OF CONTEXT: SOCIAL FRAMEWORK EVIDENCE IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS ................. Melissa Hart 37 & Paul M. Secunda ARTICLE TOWARD A DUTY-BASED THEORY OF EXECUTIVE POWER ...................... David M. Driesen 71 NOTES POST-DAviS CONDUIT BONDS: AT THE INTERSECTION OF THE DORMANT COMMERCE CLAUSE AND MUNICIPAL DEBT ....... Sean Carey 121 BEST EVIDENCE AND THE WAYBACK MACHINE: TOWARD A WORKABLE AUTHENTICATION STANDARD FOR ARCHIVED INTERNET EVIDENCE ................................. Deborah R. Eltgroth 181 "THE RIGHT OF THE PEOPLE": THE NSA, THE FISA AMENDMENTS ACT OF 2008, AND FOREIGN INTELLIGENCE SURVEILLANCE OF AMERICANS OVERSEAS ............... Jonathan D. Forgang 217 WHAT THE RIGHT HAND GIVES: PROHIBITIVE INTERPRETATIONS OF THE STATE CONSTITUTIONAL RIGHT TO BAIL ......... Ariana Lindermayer 267 AN ANALYSIS OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION'S SELECTION OF TRANSFEREE DISTRICT AND JUDGE ........ Daniel A. Richards 311 PROTECTIONS FOR ELECTRONIC COMMUNICATIONS: THE STORED COMMUNICATIONS ACT AND THE FOURTH AMENDMENT .................. Alexander Scolnik 349 A CLOSE LOOK AT ADEA MIXED-MOTIVES CLAIMS AND GROSS v. FBL FINANCIAL SERVICES, INC......................... Leigh A. Van Ostrand 399 THE PHILIP D. REED LECTURE SERIES PANEL DISCUSSION SANCTIONS IN ELECTRONIC DISCOVERY CASES: VIEWS FROM THE JIUDGES* PANELISTS Hon. John M. Facciola Judge, Districtof Columbia Hon. Elizabeth D. Laporte Judge, Northern District of California Hon. Loretta A. Preska Judge, Southern District of New York Hon. Shira A. Scheindlin Judge, Southern District of New York MODERATOR Daniel J. Capra Reed Professor of Law, Fordham University School of Law Reporter to the Judicial Conference Advisory Committee on Evidence Rules PROFESSOR CAPRA: Good evening. My name is Dan Capra. I have the honor of occupying the Philip Reed Chair. The Philip Reed Chair-I have had that since 1992, when it was instituted-is funded by the generosity of the Philip Reed Foundation. Philip Reed was one of the most accomplished Fordham graduates ever. He was a general counsel of GE for many years, and he gave back to the school. I'm very happy about that. I would say parenthetically that the chair was supposed to be a rotating chair. It was supposed to rotate every three years, but I have been in it for * This Panel Discussion was held on February 24, 2009, at Fordham University School of Law. The text of the Panel Discussion transcript has been lightly edited. FORDHAM LA W REVIEW [Vol. 78 twelve years, and nobody has tried to move me out. Actually, Philip Reed Jr. has said he still wants me here. So, I'm very happy to be here and very happy to be putting on these programs. The program tonight is a judges' panel on sanctions in electronic discovery. I would just like to set the table very quickly. We are going to get to a lot of issues tonight, and there is a lot of stuff to discuss. The explosion of electronic information has had a profound impact on the discovery process, as I'm sure most of you are aware. Instead of single hard copies of documents, where all the drafts are destroyed, now electronic information has multiple iterations, strings of emails and the like, and often it's not destroyed in any kind of permanent sense. So electronic discovery raises difficult issues of, among other things, preservation, retrieval, and production. Many lawyers involved in electronic discovery are not really up-to-date on the special challenges that are presented by discovery of electronic information, including interfacing with IT people and trying to understand IT-speak. So there is a lot of getting-up-to-speed on this. The result, I think, is that many parties in litigation-and lawyers, as well as parties-end up not producing all of the electronic data that is discoverable or end up producing it so late in the process that the adversary is prejudiced. We are taking that as kind of the background for our panel tonight. The questions that the panel will discuss tonight are as follows: " When and whether to impose sanctions for nonproduction or delayed production of electronic data. " If the decision has been made to sanction, which of the many sanction options are appropriate in any particular circumstance? We are most fortunate to have a panel of distinguished judges who are nationally known voices on the subject of electronic discovery in general and on sanctions in particular. The bios will be brief, because they could just take up the whole night. So we are going to be real quick about that. I'll proceed by alphabetical order. Judge John Facciola, Magistrate Judge for the District Court of the District of Columbia, has been a magistrate judge since 1997; author of many important opinions on electronic discovery; a frequent speaker and prolific author on electronic discovery topics-very readable opinions, I have found. Very readable opinions. He is a former adjunct professor at Georgetown and Catholic Law Schools and a former Editor-in-Chief of the Federal Courts Law Review. Next, Judge Elizabeth Laporte, Magistrate Judge for the Northern District of California, has been a magistrate judge since 1998. She is also a respected speaker and frequent speaker on e-discovery and other topics and a respected author in the area. Her Fordham connection: she's a former clerk of Marilyn Hall Patel, who is a Fordham graduate; a very respected member of the judiciary. 2009] SANCTIONS IN E-DISCOVERY CASES She is a member of the Jury Trial Improvement Committee of the Ninth Circuit Court of Appeals, and she is a judicial observer for the Sedona Conference Working Group on Electronic Document Retention and Production. Next, Judge Loretta Preska, District Judge for the Southern District of New York, a district judge since 1992, one of Fordham Law School's most distinguished graduates. A true friend of the Law School. I'm honored to have her here tonight. Judge Preska is a trustee of Fordham University since September 2007. The Fordham Alumni Association awarded her its Medal of Achievement in 1998. She's a member of the Board of Directors of the Federal Judicial Center (FJC) and trains new judges in the famed "Baby Judges School" of the FJC. She is the author of dozens of influential opinions, the most important one for tonight being the opinion in the Metropolitan Opera case,' which set the standard for determining whether to impose a default judgment for electronic discovery violations. 2 Finally, Judge Shira Scheindlin, District Judge for the Southern District of New York, whose-I'm going to add this; I wrote it down and I'm going to read it-whose sense of professionalism and work ethic I try unsuccessfully to emulate every day. Appointed to the bench in 1994, she clerked for the late Judge Brieant and served previously as a magistrate judge in the Eastern District of New York. She's the author of the landmark Zubulake opinion, 3 which blazed the trail for many difficult electronic discovery issues, including determining whether electronic information is reasonably accessible, the duties of lawyers in managing the client's electronic discovery obligations, the use of adverse inference instructions, which she will talk about tonight, and the protocol for determining whether the costs of retrieving electronic 4 data should be shared. She is a former member of the Judicial Conference Advisory Committee on Civil Rules and was instrumental in the development of the 2006 electronic discovery amendments to the Civil Rules. 5 She is the coauthor of the first published casebook on electronic discovery and digital evidence, which is right here. 6 So that's our panel. Before I kind of dive in quickly, I'd like to thank the Law Review for their outstanding efforts on our behalf in getting people here and being here. I really, really appreciate it. These proceedings will 1. Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l Union, 212 F.R.D. 178 (S.D.N.Y. 2003). 2. See id. at 218-20. 3. Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D.