Some high drama recently hit the insular world of eDiscovery. Or, at least what passes for drama at an academic conference featuring federal judges. According to legal blogger Ralph Losey, Judge Shira Scheindlin, easily the most respected judge on discovery-related matters, told the audience at the recent Georgetown eDiscovery Conference that she was, “disappointed that the Rules Committee did not have the courage or vision to write a rule on preservation.” (Losey’s italics) She happened to be sitting next to the Chair of the Civil Rules Committee’s Discovery Subcommittee, Judge Paul Grimm at the time.
Okay, maybe it’s not high drama, but it was certainly a noteworthy exchange. That’s because when Judge Scheindlin speaks, the entire legal profession not only listens, but they often actually take action and do what she says.
Not so Fast, Judge Scheindlin
I’ve interviewed Judge Scheindlin on several occasions. She is very smart, quick, tough, and does not like to waste time with obvious or dull questions. As Wikipedia puts it, “Scheindlin is known for her intellectual acumen, demanding courtroom demeanor, and aggressive interpretations of the law…” I learned not to waste Judge Scheindlin’s time with boring questions, or she will politely but brusquely end the interview.
That exacting and focused intelligence is why she is one of the most influential judges in this area of law. When faced with an interesting and challenging problem, she will attack it and take it apart piece by piece. Who else but Judge Scheindlin, when faced with a seemingly run-of-the mill employment case could have authored FIVE rulings spanning three years and hundreds of pages just to decide when email is discoverable? Those rulings in the Zubulake case were so potent that they effectively kick-started the eDiscovery industry as it exists today. And just a few years after the case wrapped up, the Federal Rules were amended to include many of her innovations.
Unfortunately, Judge Scheindlin’s recent admonishment is an overstatement. She is clearly trying to goad the Rules Committee to address the scope and duration of the duty to preserve evidence in litigation. Organizations are trying to limit their exposure to sanctions for spoliation, demanding to know when a duty to preserve ESI is triggered, what must be preserved, and when the duty expires.
This is pretty much the problem Scheindlin was addressing in Zubulake, but it is wrong to think that we can ever have a complete set of rules addressing this issue. Judge Scheindlin should know, probably better than anyone, that technology changes too fast for the rules to ever fully describe the steps firms should take to identify and preserve evidence for litigation. In Zubulake, the dispute at hand was whether backup tapes of email were discoverable for litigation. Just a few years later, backup tapes are already an anachronism that few companies even use, and the hundreds of pages of balancing tests and checklists that she wrote are of little practical use to anyone.
There is Already a Way
What the 2006 updates to Federal Rules of Civil Procedure did was put in place a framework that makes discovery possible no matter what technical challenges are faced. Lawyers must first take advantage of the Rule 26(f) conference to hammer out the details of discovery early with their opponents. Second, they must advise their clients to identify any sources of data that might be relevant to a matter and preserve it all. Since Zubulake, data storage has become inexpensive, meaning over-preservation is not a cost challenge. Lawyers want judges to do their jobs for them, to provide a detailed checklist they can step through to idiot-proof discovery. But discovery will never work this way.
Instead of producing a long list of detailed rules, federal judges need to remind lawyers that we have a flexible and powerful framework in place for making discovery happen in an efficient and cost-effective manner. If a party fails to preserve evidence or fails to identify data that will serve their client’s interests, it is because they failed to use the process, not because they didn’t have enough detailed rules.
