No Consensus Reached on Preservation: Discovery Subcommittee Holds Mini-Conference on September 9, 2011

September 12, 2011 Author: David J. Kessler

On September 9, the Discovery Subcommittee of the Advisory Committee on Civil Rules convened a mini-conference in order to gather information and determine whether it is time to develop recommendations for a change to the Federal Rules of Civil Procedure to address preservation issues. The mini-conference was attended by approximately 25 speakers, including corporate counsel for various Fortune 100 corporations, attorneys in private practice, professors, government representatives, and many members of the judiciary, including Judges David Campbell (D. Az.), John M. Facciola (D.D.C.), Paul Grimm (D. Md.), Michael Mosman (D. Ore.), Nan Nolan (N.D. Ill.), Lee Rosenthal (S.D. Tx.), and Shira Scheindlin (S.D.N.Y.).[1]

While the conference resulted in a very detailed discussion of the major issues involved, no resolution was reached regarding whether a rule should be implemented at all or on the approach such a rule would take if implemented. Attendees of the conference, including the judicial representatives, seemed equally divided on both issues. Of the Judges in attendance, Judge Scheindlin advocated most strongly for a rule to be implemented, while Judge Nolan firmly asserted that the time is not yet ripe for such a rule since the common law continues to develop around the issues.

Generally, the conference was divided into three portions. First, the attendees discussed whether and to what extent preservation actually presents a problem to litigants and corporations. Is it a problem that even needs to be addressed?  Second, representatives explored whether and to what extent technology can solve the problem. Is an amendment necessary or will technology resolve the issue? Third, the committee asked whether a rules change is the answer and, if so, what change would be appropriate.

Is Preservation Even a Problem that Needs to be Addressed?

The first portion of the conference was framed by the observation by the judges in attendance that they see preservation conflicts in less than one percent of their cases. Given this context, they asked, is a rule on preservation necessary, or would such a rule serve only to place additional burden on small companies and individuals who do not face a large preservation burden. In fact, many members of the judiciary argued that the answer may be a fleshing out of Rule 26(f), which requires pre-trial conferences on discovery issues. However, most present indicated that the 26(f) conference does not provide any relief at all, with judges in attendance indicating they did not see very detailed discussions of preservation issues at these conferences. 

Corporate voices dominated this portion of the discussion, with representatives of large Fortune 100 companies making a convincing case that preservation is a problem for corporations of their size, due in part to a reputational fear of being sanctioned, or even accused of spoliation. They reported costs in the millions of dollars each year being spent on preservation issues, and stated that only a small percentage of the information that is put on hold each year ever is produced in any litigation or investigation setting. They argued that over-preservation is the only way to avoid facing preservation sanctions later in litigation since there are no clear guideposts provided in the rules for these corporate litigants with complex data structures. Ken Withers, Managing Director of The Sedona Conference, also supported the argument that preservation is an issue for large litigants, citing an informal survey conducted of The Sedona Conference Working Group 1 members. This survey showed that over three-quarters of respondents believed that preservation issues have become more prevalent over the last five years.

The corporate attorneys also responded that a fleshing out of Rule 26(f) is not the answer due to the fact that the 26(f) conference occurs too late in the litigation process to provide any relief and since cooperation is not always feasible between parties with disparate levels of knowledge regarding the discovery process or widely varying amounts of data. One point that did not appear to get much attention is how would additional meet and confers or an additional push for transparency help with preservation when there still appears to be confusion and disagreement amongst the judiciary and bar about the parameters of preservation, including trigger and scope. 

Is Technology Going to Solve Preservation or Make it Worse?

The second portion was driven by consultants and vendors in attendance, who helped to explain the current state of various technologies presenting preservation issues, such as social media and cloud computing. They also discussed whether there might be a technological solution that could be widely applied to solve for the current complexities involved in preservation issues. Judge Facciola expressed skepticism at this latter point, arguing that imposing any technology requirements on preservation could cripple pro se litigants, and at the end of the day it was widely agreed that no technology solution could be broadly applied to all litigants in federal courts.    

If a Rule is Necessary, How Should it be Crafted?

Many speakers argued for a rules change, both to Rule 26 regarding preservation duties and to Rule 37 regarding sanctions issues. Before the conference, the Committee circulated three preliminary rule proposals for discussion that provided a starting point for the conversation.[2]  The first proposal represented a very detailed discussion of preservation issues and proposed additions to Rule 26 and Rule 37, regarding sanctions. The second proposal represented more general revisions to Rules 26 and 37, primarily codifying common law understandings of preservation. The third proposal did not suggest any revisions to Rule 26, simply revising Rule 37 to give explicit sanction power to cover preservation misconduct. The attendees were widely divided on the best approach.

Corporate attendees almost uniformly argued that any rule is better than no rule, explaining that some relief is needed from the massive preservation burdens and costs they now face. They argued that some guideposts are required to allow corporations to make more targeted and appropriate preservation determinations in the context of a uniform approach to both preservation and sanctions issues in the Federal Courts. Judge Scheindlin also advocated for changes to be made to both Rules 26 and 37, arguing that uniformity is absolutely needed for litigants, particularly in the realm of sanctions. She promoted new rules that would stress proportionality and provide some guidance as to the level of sanction that may be applied in the face of varying levels of culpability ranging from negligence to bad faith. She very thought a rule that would only impose sanctions when litigants act in bad faith was too limited.

Conversely, certain government representatives strongly asserted that any rule, no matter how generally stated, may cause additional problems for litigants with few resources to spend on these issues. They claimed that the time is not ripe for a rules change, and were joined in this line of reasoning by Judge Nolan who chairs the Seventh Circuit Pilot Program addressing e-discovery issues. They along with many other attendees argued that further empirical research is needed to fully define the issue before a solution can be defined. There was no plan advanced as how to conduct this research.

Conclusion

At the end of the conference, Judge Rosenthal drew a laugh by stating that if the mark of a successful mini-conference to flesh out a problem is that at the end of the day the problem turns out to be even more complex than it seemed at the start of the day, then this was a very successful mini-conference. The committee continues to discuss these issues and we will continue to track the development of this important issue.

This article was prepared by David J. Kessler (dkessler@fulbright.com or 212 318 3382) and Emily Johnston from Fulbright's e-Discovery and Information Governance Practice Group.

Emily Johnston attended the mini-conference as an observer.  Her notes, which are being shared with the subcommittee, are available upon request.

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[1] Attendees representing the Discovery Subcommittee included Hon. David Campbell (D. Az.), Hon. Michael Mosman (D. Ore.), Hon. Paul Grimm (D. Md.), Elizabeth Cabraser, Anton Valukas, Prof. Edward Cooper and Prof. Richard Marcus.