Tuesday, December 7, 2010
Prof. Benjamin Spencer (Washington & Lee) has posted on SSRN a draft of his article, The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, which is forthcoming in the Fordham Law Review. Here’s the abstract:
The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not long afterwards, Judge Lee Rosenthal - Chair of the Judicial Conference Committee on the Rules of Practice and Procedure (the Standing Committee) and former Chair of the Civil Rules Advisory Committee - issued an opinion (Rimkus Consulting Group, Inc. v. Cammarata ) describing her understanding of many of the same issues touched on in Pension Committee. Both of these opinions have come at a time when the legal community is looking for better and more consistent guidance regarding the preservation obligations attendant to prospective litigation in the federal courts. Unfortunately, although other courts may draw some guidance from these two opinions, the fact is that variation among district courts and among the circuits will persist as long as policing pre-litigation preservation obligations remains largely the product of common law regulation via the inherent power of the courts.
Given this state of affairs, the time is ripe for a uniform federal approach to the pre-litigation duty to preserve and sanctions for spoliation. After reviewing the existing frameworks for determining the duty to pre-serve and imposing sanctions that prevail among the federal courts, this Article will explore how the Federal Rules of Civil Procedure might be amended to define and enforce pre-action preservation obligations more effectively and consistently across jurisdictions.