Judge Shira Scheindlin of the US District Court for the Southern District of New York has been at it again!
Famous for her ground breaking judgments on e-discovery spoliation in the Zubulake and Montreal Pension plan cases, the judge has now delivered a third ruling on this subject.
Law Technology News carried an article earlier this month entitled Scheindlin Not Charmed When Revisiting Spoliation a Third Time where the judge criticised the claimants Sekisui America Corp for their failure to implement a litigation hold for fifteen months when they knew there was going to be litigation and, worse still, for deleting a batch of emails in its ongoing case for breach of contract including the personal email folder of one of the defendants.
In reaching her decision to instruct the jury that they should make an adverse inference finding against the claimants with costs and fees to be decided later, the “godmother of e-discovery” overruled the earlier decision of US Magistrate Judge Frank Maas, himself no stranger to e-discovery decisions.
In her opinion, Judge Sheindlin reiterated her view that “spoliation sanctions can be imposed for any willful destruction of evidence, and that a showing of bad faith was not required.”
She also took the opportunity to criticize the proposed amendment to Rule 37(e) to the Federal Rules of Civil Procedure, which would limit the imposition of e-discovery sanctions for spoliation to instances where the destruction of evidence caused substantial prejudice and was willful or in bad faith.
“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,” wrote Scheindlin. “Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior.”
I have said it before, but I am convinced that what happens over there in the US is almost certain to be the case over here before too long. Today, it would be a brave lawyer who ignored these persuasive and articulate views from such a distinguished judge. After all, it seems to me to be common sense that if you do not preserve your documents when you know they are likely to be germane to the case you are about to face or to bring and you delete others, you are unlikely to attract the sympathy of the court either here or in the United States.
In this country, we are beginning to see the first decisions from the courts following the rule changes in April this year. They have been interesting for the approach they show the judges will take to the Jackson reforms. For the time being, however, the US courts in general, and the courts in Manhattan in particular, continue to give a lead on e-discovery issues.