Challenge eDiscovery and the Godmother Defender Will Attack
October 1, 2013
More discussion has popped up about the lawfulness of eDiscovery and what sanction can govern its usage. The Clearwell Systems eDiscovery 2.0 blog posted, “Judge Scheindlin Blasts Proposed FRCP Amendments In Unconventional Style” about how a federal judge voiced her opinion about proposed amendments to Federal Rules of Civil Procedure. She commented on Federal Rule 37(e), mostly due with a recent case about how a company screwed up its eDiscovery to present evidence. Judge Scheindlin issued a sanction and many people are saying she reacted to harshly.
The case involves Sekisui American Cooperation vs. Hart. The case is about a group of employees who left their company and adversely sued by said company. In the court case, the company tried to present emails as evidence but they were missing. The company had deleted them by accident, because they delete emails after a certain period of time. Judge Scheindlin believes sanction are the best way to resolve the problem. She used this case as an example to voice her dislike of the amendments:
“ ‘…“the 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 or 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. 5/8/2013 Report of the Advisory Committee on Civil Rules at 47. 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 who destroy evidence 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 is a big promoter of eDiscovery and her opinion will weigh heavily on the decision. She is a fighter for eDiscovery search and for that we are thankful.
Whitney Grace, October 01, 2013
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