Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom

Abstract

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology. Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, kindly reviewed and commented on my article. He said that the piece is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by disparate positions taken by federal courts on sanctioning for spoliation. For instance, courts divide over the level of culpability required for the issuance of a serious sanction (such as an adverse inference instruction) and over requirements that the innocent party prove the relevance of the missing evidence. I focus on these differences in my discussion of two landmark 2010 sanctions decisions, Pension Committee and Rimkus, by federal district Judges Shira A. Schiendlin (author of the famous Zubulake opinions) and Lee H. Rosenthal (now Chair of the Standing Committee). Both of these judges served on the Advisory Committee during the amendment process and are widely known to be e-discovery experts. Rimkus and Pension Committee are useful background for my analysis of the teaching effectiveness of Connor v/ Sun Trust, the first spoliation decision in the casebook, Electronic Discovery and Digital Evidence (by Judge Shria A. Scheindlin and Professor Daniel J. Capra), which I used in my course in Complex Litigation. Conner appears in the casebook under the heading, “What Constitutes Spoliation?” I had my students email me each day their comments on how the cases covered in class helped them learn about the spoliation of ESI. Their comments (and mine) on the teaching effectiveness of Connor are an integral part of the article. Also, I briefly refer to some of the Federal Judicial Center’s empirical research on sanctions decisions. Please see my CV for citations to my articles in which I report the results of my own empirical research. The article concludes with a discussion of the current efforts of the Advisory Committee on Civil Rules to whether or not to propose a rule-based approach to preservation and sanctions for spoliation.