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Is It Time for a Federal Rule on Preservation?

By Kent A. Lambert, Litigation News Associate Editor – August 2, 2010

An unusual consensus among some of the country’s leading e-discovery practitioners culminated in a proposal [PDF] describing the elements of a new federal rule of civil procedure to govern preservation—and spoliation—of records and data.

E-Discovery Panel Recommendation
The proposal was the recommendation of the E-Discovery Panel at the 2010 Conference on Civil Litigation sponsored by the Advisory Committee on Civil Rules of the Judicial Conference of the United States. The panel itself had an impressive pedigree, encompassing judges with significant e-discovery experience including U.S. District Court Judge Shira A. Scheindlin, of the Southern District of New York, and Magistrate Judge John M. Facciola, of the District of Columbia. The panel also included several leading e-discovery practitioners from the ABA Section of Litigation including Gregory P. Joseph, New York, a former chair of the Section, and John M. Barkett, Miami, a former member of the Section’s Council.

A number of the Panel’s members, including Judge Scheindlin, Magistrate Judge Facciola, and Barkett, appeared just a week later at the Fourth Annual ABA National Institute on E-Discovery [PDF], co-sponsored by the ABA Section of Litigation’s Pretrial Practice and Discovery Committee, to discuss the proposal and the reasoning behind it.

According to Judge Scheindlin’s comments at the National Institute, “the consensus of the panel members was that there is an acute need for increased certainty and predictability in connection with the accrual, scope, and enforcement of preservation duties.” Citing her own “informal polling,” Judge Scheindlin added that she believes a compelling majority of lawyers working with institutional clients of all shapes and sizes share the panel’s conviction.

A few weeks after the National Institute, Judge Lee H. Rosenthal of the Southern District of Texas, chair of the Judicial Conference Committee on Rules of Practice and Procedure, offered her own thoughts about the proposal to the Section’s leadership at their meeting in June. In her comments to the Section’s leadership, Judge Rosenthal echoed Judge Scheindlin’s observations about the importance of establishing symmetry across the circuits on a number of critical points related to preservation, including a uniform federal standard for determining when—and what—sanctions are appropriate for spoliation.

Elements of the Proposal
As outlined by the E-Discovery Panel, the proposed rule would address a number of the central issues that have dominated recent decisions addressing spoliation and document preservation concerns, including landmark decisions by Judge Scheindlin in Pension Committee of University of Montreal Pension Plan v. Banc of America Securitiesand by Judge Rosenthal in Rimkus Consulting Group, Inc. v. Cammarata.

The elements of the proposal include:

  • general and specific triggers for attachment of the obligation to preserve information, including electronically stored information;
  • the scope of the preservation duty, including both time frame and the types of covered data and data sources;
  • the form or format in which data subject to preservation should be maintained;
  • limitations and guidance for determining the individual database users and data custodians for whom detailed data must be captured and preserved;
  • preservation standards applicable to non-parties;
  • limitations as to the duration of preservation duties and their applicability to post-suit records and data;
  • the contours of a safe harbor for organizations utilizing formal litigation hold procedures;
  • the extent to which internal efforts to ensure and accomplish proper preservation should be protected as work product; and
  • the consequences and related procedural requirements applicable in instances of alleged breaches of the preservation duty.

Reactions to the Proposal
Barkett acknowledges that reaching a solid consensus with respect to a functional but sufficiently comprehensive rule is a daunting undertaking. Attempting to articulate a uniform preservation rule raises a number of concerns, beginning with how to impose pre-litigation preservation duties while still acting within the authority of the Rules Enabling Act (28 U.S.C. § 2072).

Other concerns include how to articulate a codifiable standard for preservation that meaningfully addresses concerns about proportionality. “Because of the wide diversity of civil litigation in the federal courts, including the amount at stake, the nature of the claims, and the complexity of the issues, any new rule mandating document preservation would have to be very general, for example, ‘Parties to litigation shall preserve all documents that may lead to the discovery of admissible evidence,’” notes Mark Davidson, Seattle, cochair of the Section’s Business Torts Committee.

Davidson suggests that a more generic approach “would have the salutary effect of putting the parties and their counsel on express notice of their duty to preserve, although motion practice in some cases concerning whether a particular unpreserved document was subject to the rule is probably inevitable.”

Despite these and similar concerns, support for a uniform federal rule seems surprisingly strong. “A critical issue is the need for some clear limits on such things as the number of key custodians within an organization for whom all or essentially all data and information must be preserved,” says Bart L. Greenwald, Louisville, cochair of the Section's Commercial and Business Litigation Committee.

Greenwald also notes a need for similar boundaries and guidance related to the preservation of back-up and disaster recovery systems and/or the suspension of automated document destruction and back-up recycling protocols. “Organizations continue to lack clear guidance in terms of how to deal with largely redundant or overlapping data sources and similar circumstances when the possibility of some sort of litigation begins to inch toward the inevitable end of the spectrum,” Greenwald says.

For many supporters of the proposal, whatever the challenges, the promise of uniformity and reliable guidance make pursuit of a uniform federal rule on preservation worth the effort. “Anything that would bring some degree of certainty and consistency to the standards governing document preservation and spoliation would be welcome,” says Keith R. Dutill, Malvern, PA, former cochair of the Section’s Trial Practice Committee. “Until we develop reasonably and widely accepted standards, parties will continue to devote disproportionate resources to the pursuit and avoidance of sanctions, the system will grow continually less attractive to litigants, and we will continue to bemoan the disappearance of the jury trial.”

Keywords: Litigation, e-discovery, preservation, federal rules of civil procedure

  • August 4, 2010 – Kent, thanks for this helpful article and update on a very important topic.


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