Gibbons Law Alert
On April 29, 2015, the United States Supreme Court adopted, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from September 25, 2014, June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013. Absent action by the United States Congress, the proposed amendments will take effect on December 1, 2015.
On September 16, 2014, the Judicial Conference approved, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments and the approval process, see our previous blog posts from June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013.) The proposed amendments, which include changes to the definition of the scope of discovery in Rule 26(b)(1) and the applicable standard courts should apply when considering sanctions for ESI spoliation under Rule 37(e), will now be submitted to the U.S. Supreme Court for consideration and approval. If adopted by the Supreme Court before May 1, 2015, and Congress does not intervene, the proposed amendments will take effect on December 1, 2015.
On May 29-30, 2014, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) met and approved the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from May 27, 2014, February 10, 2014, and May 6, 2013.) The Standing Committee approved the entire slate of proposed amendments, including changes to the scope of discovery, as defined in Rule 26(b)(1), and changes to the standard to be applied by courts when imposing curative measures or sanctions for the spoliation of electronically stored information, as per Rule 37(e). Before approving the proposed amendments, the Standing Committee made several minor revisions, including changes to the proposed Committee Notes to Rules 26 and 37 (the meeting minutes setting forth the precise changes were not available as of writing). The Agenda Book from the Standing Committee’s meeting is available.
Like many, we’ve been following closely the process to amend the Federal Rules of Civil Procedure. (See our previous blog posts from May 6, 2013 and February 10, 2014.) Last month, the Advisory Committee on Rules of Civil Procedure took the next step in that process by approving the proposed amendments and submitting them to the Standing Committee on Rules of Practice and Procedure for its review and possible approval. But before doing so, the Advisory Committee took the particularly noteworthy step of completely rewriting the proposed amendment to Rule 37(e).
The proposed amendments to F.R.C.P. 37(e) would establish a single standard by which courts will assess culpability and issue sanctions for failure to preserve electronically stored information (“ESI”). Our previous blog post discusses the rule. The proposed amendments to F.R.C.P. 37(e) were recommended for adoption in 2010 and, on June 3, 2013, they were approved for public comment (as part of a package of amendments to several federal rules) by the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure. On August 15, 2013, the Committee officially published for public comment the full slate of proposed rule changes. Unsurprisingly, the proposed amendments have generated considerable feedback from the legal community and, indeed, the discussion took center stage at the 2013 Georgetown Advanced eDiscovery Institute on November 22, 2013. With little more than a week to go before the comment period expires, and with, to date, more than 600 comments already posted addressing various aspects of the proposed rule amendments, we thought it might be a good time to reflect upon the discussion at Georgetown, especially for those considering weighing in before the end of the public comment period.
Obtaining electronic discovery from a city or municipality in civil litigation can be a slow process. But, in DMAC LLC and Fourmen Construction, Inc. v. City of Peekskill, plaintiffs’ task was made impossible because of the City of Peekskill’s failure to implement a “formal e-mail retention policy,” leaving it up to the “sole discretion” of City staff and elected officials whether to retain or delete their e mails. When the City and other defendants were sued in 2009 for stopping a real estate development project that began back in 2007, allegedly for political reasons, that lack of any e-mail retention policy came back to haunt the defendants.
To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.
As was recently reported in the New York Law Journal, one of the issues for discussion at the recent annual meeting of the New York State Bar Association this January was the need for more uniformity, and possibly even a bright-line rule, to govern issues of document preservation. This was the focus of a panel including two New York State Supreme Court justices and three federal judges from the Southern District of New York – District Judge Shira Scheindlin and Magistrate Judges Andrew Peck and James Francis.
As previously reported, in Magistrate Judge Grimm’s September 9, 2010, decision and order, often referred to as Victor Stanley II, defendant Creative Pipe, Inc. and its principal, defendant Mark T. Pappas, were sanctioned for intentionally violating the court’s preservation and production orders. Among other things, Magistrate Judge Grimm ordered defendants to pay plaintiff’s costs and attorneys’ fees allocable to their spoliation. Judge Grimm further ordered that Mr. Pappas be imprisoned for no more than two years, “unless and until” he pays the fee award. Judge Grimm regarded this sanction as “absolutely essential” in light of his conviction that, “[w]ithout the threat of jail time, … Plaintiff will receive a paper judgment that does not enable it to recover its considerable out-of-pocket losses caused by Pappas’s spoliation.” By Order dated September 30, 2010, the Honorable Marvin J. Garbis, U.S.D.J., entered Magistrate Judge Grimm’s September 9 order essentially verbatim, including that, “[p]ursuant to Fed. R. Civ. P. 37(b)(2)(A)(vii), Defendant Pappas’s acts of spoliation shall be treated as contempt of this Court, and as a sanction, he shall be imprisoned for a period not to exceed two (2) years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded ….” (Emphasis added.)
In Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010), Magistrate Judge Paul Grimm sanctioned Defendants CPI and Mark Pappas, its president – and threatened to imprison Pappas – for the willful destruction of evidence and violation of his discovery orders. The Court’s lengthy decision gives a comprehensive analysis of preservation and spoliation issues across the federal circuits that will benefit every practitioner and corporate litigant.