RSA Conference 2009-Mock Hearing and Appeal re: Spoliation of Digital Evidence

by Cary J. Calderone, Esquire

This was a treat. The Mock Hearing and Appeal, presided over by the Hon. John Facciola at the trial level and the Hon. Shira Scheindlin and Hon. Richard Kramer at the Appellate level, examined a spoliation challenge, its defense, and had an interactive discussion after the decision. It is very rare to get a chance to observe and learn about the decision-making process of any active Judge, let alone have veritable "rock stars" of electronic discovery, walk you through a hypothetical case and explain the issues as they rule, but that is exactly what the Mock Trial and Mock Appeal sessions provided. For those who do not have a legal background, all active Judges are governed by strict rules of professional conduct and must avoid "even the appearance of impropriety." This, in addition to the fact that they are monumentally busy, is why we seldom hear from these brilliant and experienced people on the evening news or talk shows. We are generally limited to reading their opinions and using them as precedent to argue similar case facts follow or can be distinguished from those previous cases. However, these mock trials are hypothetical and accordingly, the judges are at liberty to point out why the lawyers and witnesses won or lost their arguments. I implore anybody who is in the Legal, IT, Compliance, Records Management or Risk departments and, is in any way responsible for or involved in Records Retention or Electronic Discovery at their companies, to seek out this type of session at an upcoming conference and attend. Short of going into real court and observing (See Federal Court for Discovery-Be a Boy Scout) this type of presentation provides the best opportunity to learn why we are dealing with Record Retention Schedules and Policies in the first place.

In brief, the hypothetical involved an airline, who had an incident allegedly occur between a disgruntled passenger and an angry flight attendant. The airline had a document retention policy where handwritten Incident Reports from flight attendants would get entered into electronic format. Then the handwritten original would be destroyed. Also, there was a court ordered Legal Hold in place and the flight attendant shockingly had no recollection of the events that happened. It is not necessary to go through all the details that were discussed but a couple of important items relevant to Document Retention and Electronic Discovery are that: 1) Check to see if your company is actually following its Policy? Judge Scheindlin commented that "if you follow a policy that allows for routine destruction of data, before a duty to preserve it on Legal Hold arises, you are safe." 2) Is your policy reasonable or will it look like it is designed to eliminate any potentially relevant and/or harmful evidence? 3) Know your facts when it comes to claiming or defending claims of spoliation. For example, the Second Circuit does not require malicious acts. Mere gross negligence will be sufficient to justify an "adverse inference instruction" from the Judge.

At the trial level Judge Facciola ruled that the airline had disobeyed the Legal Hold when it destroyed the original handwritten document. Further, he found that the electronic version did not include a signature or an attestation from the flight attendant so the electronic version was not "complete" which violated the airline's own retention policy. He ordered an adverse inference instruction be given. An adverse inference instruction means the before the jury deliberates, the Judge explains that because this evidence was destroyed they may assume that it meant it was evidence harmful to the airline. Not good for the airline! On appeal, the panel overturned the lower court and found that given it was negligence and not malicious acts, the adverse inference instructions was too harsh and monetary sanctions would be more appropriate. Better for the airline, but they did not discuss the amount of the sanctions so it might not have been that much better.

When I expressed my condolences to Judge Facciola for getting reversed by the mock Appeal panel he said that he was very confident that the Appeal would have been reversed back in his favor at the mock Supreme Court level. :)

Panelists: Honorable John Facciola, United States Magistrate Judge
United States District Court for the District of Columbia
Honorable Shira Scheindlin United States District Judge
United States District Court for the Southern District of New York
Honorable Richard Kramer San Francisco Superior Court Judge
Stephen Wu, Esq. Partner Cooke, Kobrick & Wu, LLP
Hoyt Kesterson II Consultant
Randy Sabett Attorney Sonnenschein Nath & Rosenthal
Joseph Burton Attorney/Managing Partner
Duane Morris LLP
Moderator and Counsel for Mock Plaintiff: Steven Teppler, Esq. Senior Counsel Kamber Edelson, LLC

"Reasonable" is graded on a scale

by Cary J. Calderone, Esquire

The Silicon Valley chapter of ARMA International held an ITRIM (Trim your data) one-day conference recently and I was fortunate to attend the lunch panel discussion. The panel members, Grant Law, Esquire of Shook Hardy & Bacon, Nathan Walker, Senior Technical Marketing Engineer of NetApp Corporation, Lisa Ripley, CISSP, Electronic Discovery Manager of Sun Microsystems, Inc., and Greg Lipptez, Esquire of the Jones Day law firm, gave brief presentations covering many familiar data retention and electronic discovery ("DRED") themes: 1) You will get sued therefore having a Data Map that explains what you have and where you have it is critical.. 2) Legal needs to be able to listen to IT and vice versa.
3) There is a constant struggle between lawyers who prefer to keep very little data and IT personnel who keep as much as possible. 4) Too many organizations have too many employees who are “surprised” to learn they actually have a record retention policy (and this is especially bad when their legal team learns of this fact during sworn testimony). And finally, 5) the law requiring what you need to keep, is not static, it changes. While it is nice to know that concepts that I have previously covered in this blog are out there being discussed and adopted by more data managers and professionals, I would almost have declined to write about the discussion but for one really great quote from Nathan Walker. Answering a question on "how best to avoid getting into trouble" with the production of Electronic Discovery for Meet and Confer conferences and motions to compel hearings, Nathan said: “The more you appear to know what you have and where you have it, the more your threshold for “reasonable” goes down.” This comment was cheered by the audience and maybe the best simple explanation for why Records and Information Managers, IT, Compliance and Legal departments need to make retention schedules, train people to follow them, and continually monitor them. To paraphrase the famous Billy Crystal character Nando, on Saturday Night Live, when it comes to electronic discovery, it is more important to appear to “look absolutely marvelous” than actually "feel absolutely marvelous." Bottom line-it is always best to know what you have and where you have it.