The Supreme Court hears oral argument in the Yates v. U.S. case [WLF, ABA Journal, Daniel Fisher, earlier] Best line from a brief, via @ToddRuger: “More specifically, a false entry cannot be made in a fish.”
P.S. Radley Balko points out that while Congress has filled the U.S. Code with strict penalties for destruction of potentially relevant evidence, federal officials themselves almost never face real consequences when they destroy such evidence.
That’s putting it mildly. But issues like litigation holds and charges of spoliation, and discovery generally, are where much of the action is in mass torts. Beck explains at Drug and Device Law.
I’ve got an update on the fast-developing scandal of evidence destruction at the IRS in my new Cato post (earlier). If not for reading Kim Strassel and her colleagues at the Wall Street Journal, I might not have learned that Lois Lerner’s emails got wiped from her hard drive by forces unknown about 10 days after the letter arrived from House Ways & Means inquiring into targeting of political opponents.
Since the new round of disclosures in the IRS scandal broke a week ago, the WSJ has shown itself willing to dig in a way that many other prestige press institutions have not. “People used to ask how Watergate might have turned out if the press had sided with Nixon instead of against him. Thanks to the work of Strassel and her WSJ colleagues, let’s hope we never find out.”
The Economist covers the story in this commentary. Our tag on evidence spoliation and document retention — lawyers among our readers will be familiar with how very seriously these concepts are taken in the world of litigation — is here.
Welcome readers: Glenn Reynolds/Instapundit.
“Microsoft is legally obligated to store an average of 60 million pages of documents for every lawsuit brought against it, even though only 88 of those will end up being used in court.” [Jacob Kastrenakes, The Verge] The company is one of many that has announced its support for a change in the Federal Rules of Civil Procedure, proposed in August by the Committee on Rules of Practice and Procedure, which would narrow the scope of obligatory discovery. The burden of discovery “deters companies from defending themselves against meritless suits and slows the process of dispute resolution,” writes Jon Palmer, Microsoft’s assistant general counsel. The proposal would also lay forth clearer standards on document retention so as to curb proliferating litigation over charges of spoliation.
The Washington Legal Foundation likes the proposals too, as does James Beck at Drug and Device Law. Not happy about it: the litigation lobby and some Senate Democrats friendly to their cause. The Judicial Conference is holding hearings that are likely to be more balanced. Comments with the Advisory Committee are due by February 15, 2014.
— against patent trolls. But Kevin O’Connor, CEO of a startup named FindTheBest, went ahead and did so [Joe Mullin, Ars Technica] Exploding and escalating-on-response demands, threats of criminal prosecution, demands for “sequestration” (removal from service) of his company’s computers to prevent evidence spoliation, and promises of burdensome discovery are all part of the story.
And so the divorce case winds up generating massive demands for hard drive contents and other electronic discovery. Draconian spoliation sanctions, as exemplified in the Morgan Stanley-Perelman and Zubulake-UBS Warburg cases, make a potentially fatal trap for the unwary:
Defense lawyers complain that their clients often are forced to supply voluminous information at great cost with little benefit. And because there is so much more information potentially subject to a discovery order, the chances are greater that a client might violate the order by inadvertently deleting data.
“Does this enhance justice? Not usually,” said Tess Blair, a partner at Morgan, Lewis & Bockius L.L.P., who heads the 1,350-lawyer firm’s electronic-data-discovery unit. “It becomes a weapon in many cases.”
(Chris Mondics, “Ediscovery profoundly changing lawyering”, Philadelphia Inquirer, Jun. 8).
Three cases of catastrophic injury to children, three defendants asked to pay:
“In one recent 18-month period, seven federal and state courts imposed sanctions on Union Pacific, the nation’s biggest railroad, for destroying or failing to preserve evidence in crossing accidents, and an eighth court ordered a case retried. One sanction has since been overturned on appeal.” Big New York Times front-pager endorses charges from plaintiff’s bar that the railroad has been less than diligent in preserving potentially unhelpful evidence after rail-motor vehicle crashes (Walt Bogdanich, “In Deaths at Rail Crossings, Missing Evidence and Silence”, Jul. 11).
“The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash. Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was ‘so egregious that no remedy short of terminating sanctions’ would adequately protect Disney and the justice system from further abuse.” The family is vowing to appeal (Laura Holson, “After 13 Years, Judge Dismisses Case on Pooh Bear Royalties”, New York Times, Mar. 30). Earlier in the case, Disney had drawn sanctions “for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems'”; see “The Document-Shredding Facility at Pooh Corner”, Aug. 24-26, 2001. For more on the propensity of some investigators retained in litigation to rifle adversaries’ garbage and commit other invasions of privacy, see Nov. 11, 2003 (FBI probe of Hollywood lawyers); Jul. 28-30, 2000 (Terry Lenzner, Oracle). More: Southern California Law Blog has followed the case.