Two weeks ago, U.S. District Judge David Campbell of Arizona issued an order imposing serious sanctions for discovery abuse against a deceitful plaintiff in a case styled, Kristin Fast v LLC et al.  The full 41-page opinion is an instructive read and I commend it to you; but if you’re in a hurry, Phil Favro offers a synopsis here.

Plaintiff Kristin Fast sought damages on theories built around an injury she claimed was aggravated by her work at  A skiing accident and surgery led Fast to be diagnosed with a syndrome called Complex Regional Pain (CRP).  I have every confidence CRP Syndrome is awful for those afflicted, but I would have gone in a different direction on the acronym. “Doctor, how long has the patient suffered from crap?”   But I digress.

Though he never stoops to say so, it’s clear Judge Campbell regards the plaintiff as full of crap, and she reveals herself to be someone who imagines she is the smartest person in the room…any room.  Ms. Fast is so smart that she felt entitled to creatively curate facts and jettison and recast unfavorable evidence–actions Judge Campbell finds Ms. Fast undertook with that rarest species of hubris, the “intent to deprive.”

Rule 37(e) of the Federal Rules of Civil Procedure was amended in 2015 to make it well-nigh impossible for a U.S. federal judge to punish a party’s failure to preserve electronically stored information (ESI) absent proof that the party acted with an “intent to deprive another party of the information’s use in the litigation.”  By “punish,” I mean assessing the most severe sanctions, like dismissing the action or instructing the jury it can infer that whatever the guilty party lost was unfavorable to the party who destroyed it.

Since its inception, there’s been uncertainty attendant to whether Rule 37(e) is the sole and exclusive remedy for the loss of ESI that should have been preserved for litigation.  Reasonable minds may conclude that, if “lost” ESI is ultimately recovered, sanctions aren’t available despite gross malfeasance.  That is, if the “lost” ESI wasn’t irreparably lost, it wasn’t “spoliated,” and no sanction may issue.  Not just no serious sanction; no sanction at all.

Not so, Judge Campbell makes clear.  Rule 37(e) is NOT the exclusive remedy for spoliation of ESI…so long as you dress the loss up as something you don’t call “spoliation.”

For example, plaintiff secretly recorded conversations using her phone, and a few (but not all) of these recordings miraculously surfaced long after they were supposed to have been produced.  Addressing a truly ‘lost’ digital recording, Judge Campbell writes, “And Defendants continue to be prejudiced by the failure of Plaintiff to produce the fourth recording she claimed to have made. It is not clear whether that recording is lost or Plaintiff has not produced it. Sanctions under Rule 37(c)(1) are authorized.” Fast at pp. 33-34.

As Chair of the Advisory Committee on the Federal Rules of Civil Procedure when the 2015 revision of Rule 37(e) was developed and adopted, Judge David Campbell is chief architect of the revision.  He knows how the Rule is supposed to work as well as anyone.[1]

That Judge Campbell construes the failure to produce ESI for causes not tied to spoliation as being a sufficient ground for FRCP 37(c)(1) sanctions ;is eye-opening to this writer.  Not that he’s the first judge to do so, but he’s an 800-pound gorilla on the point.

If the conventional wisdom is “Rule 37(e) is the exclusive remedy for spoliation sanctions for loss of ESI,” then Judge Campbell turns that on its head by adding in effect, ‘the full range of sanctions available under Rule 37(c)(1) are available for failing to produce ESI.’

Whoa, Nellie!  If the failure to produce ESI occurred because it was “lost,” then why isn’t Rule 37(e) the sole and exclusive path to sanctions?  The chief architect of 37(e) clearly indicates that sanctions for failing to produce lost ESI are proper under 37(c)(1) unless the failure was substantially justified or harmless. 

Granted, you’re still not likely to secure an order of dismissal or an adverse inference instruction for merely negligent delay or failure to produce; elements of bad faith are sure to be needed before the big guns come out.  But see FRCP Rule 37(b)(2)(A)(i)-(vi) and its sanctions for not obeying a discovery order.[2]

Still, Rule 37(c)(1) packs its own punch for conduct that violates Rule 26(e) (that’s the rule requiring parties to timely supplement discovery responses if the party learns that prior responses are materially incomplete or incorrect).  As the Court notes at p. 4, “Rule 37(c)(1) provides that a party who violates Rule 26(e) may not use the withheld information at trial unless the failure was substantially justified or harmless. This is “a ‘self-executing, automatic sanction to provide a strong inducement for disclosure of material…’” The Court adds, Rule 37(c)(1) also permits a court to order the payment of reasonable expenses caused by the failure, to inform the jury of the party’s failure, or to “impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”  Those are big guns, too.  

Backup your Phones, Folks!

Another positive aspect of the sanctions order in Fast v is that it characterizes mobile devices as sources of ESI that must be routinely preserved in anticipation of litigation.  I’ve been beating that drum for years, so it’s delightful to hear it from a Senior District Judge with tons of influence in e-discovery.

Still, there’s something about phones in the Order that throws me.  The Plaintiff claimed her iPhone was stolen, and the Court took the alleged theft to be true.  At p. 20, the Court states, “By failing to back up her iPhone, Plaintiff failed to take reasonable steps to preserve the ESI contained on the phone.”

I applaud that conclusion.  I’ve written and spoken quite a lot about how to quickly and cheaply backup iPhones for ESI preservation and of the need to do so.  Well done, Judge!

So, a party needs to foresee the loss of a phone or its contents and, rather than simply preserve the data in situ on the phone, a party must affirmatively act to back up the contents of the phone.

That would seem to be the takeaway, except when assessing intent on the next page, Judge Campbell writes, “Assuming the phone was stolen, that act could not have been foreseen or intended by Plaintiff, and neither could its corresponding loss of ESI. The Court therefore cannot find Plaintiff acted with an intent to deprive as required by Rule 37(e)(2).”

So, a party must foresee the loss of a phone or its contents as being sufficiently likely to require a copy of its contents be made, but that selfsame loss is not sufficiently foreseeable so as to supply the requisite intent to deprive?

I see the distinction, but where do we draw the line in practice?  Why is the phone itself not deemed a sufficient repository for the data to be preserved?  If the loss of the phone “could not have been foreseen,” why would there be an independent legal duty to back up the ESI contained on the phone?

It’s a fact that any device that stores ESI will fail or may be lost, stolen or destroyed.  Phones.  Laptops.  Electromagnetic drives.  Solid state drives.  Anything that stores ESI lives on borrowed time.  Is there a duty to maintain two copies of data stored on electronic media because of the inevitable and omnipresent risk of theft, loss or failure?  Or does that duty uniquely attach to phones?  If history has taught us anything it is that dogs have an insatiable hunger for homework.  Protect the evidence, people!

Duties of Counsel

Since the venerable Zubulake v. UBS Warburg decisions at the start of this millennium, Courts have warned lawyers over-and-over-again that there’s more to initiating a proper legal hold than just telling clients not to delete relevant ESI. Yet, lawyers seem resolutely immune to calls for competence.  Judge Campbell raises this in Footnote 18:

The Court is also concerned about the conduct of Plaintiff’s counsel in discovery. He had an affirmative obligation to ensure that his client conducted diligent and thorough searches for discoverable material and that discovery responses were complete and correct when made. See Fed. R. Civ. P. 26(g)Legault v. Zambarano105 F.3d 24, 28 (1st Cir. 1997) (“The Advisory Committee’s Notes to the 1983 amendments to Rule 26 spell out the obvious: a certifying lawyer must make ‘a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.’”); Bruner v. City of PhoenixNo. CV-18-00664-PHX-DJH2020 WL 554387, at *8 (D. Ariz. Feb. 4, 2020) (“[I]t is not reasonable for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that their clients’ search for responsive documents and information is complete. See Fed. R. Civ. P. 26(g).”); Stevens, 2019 WL 6499098, at *4 (criticizing “cavalier attitude toward the preservation requirement” where “counsel failed to immediately preserve obviously crucial evidence at a time when the duty to preserve existed and instead allowed the phone to remain in [his client’s] possession”).

Id. at Footnote 18, p. 39

The obligations of counsel to carry out a proper legal hold and collection, and counsels’ ability to meet those obligations, remains a river too few can ford.  But the lack of lawyer competence is not as reprehensible as the prevailing attitude of the bar respecting rife incompetence. No one seems to care, at least not enough to prioritize teaching information technology to lawyers and judges. If you don’t teach something, how can anyone be expected to learn it?  Just this month, we’ve seen two reported decisions where confusion concerning basic metadata made lawyers (and even a federal judge I admire) look incompetent in the management of ESI.  In re Cooley, No. 05-21-00445-CV, 2022 WL 304706 (Tex. App.–Dallas Feb. 2, 2022, orig. pro.) and Arconic Corp. v. Novelis Inc., No. 17-1434, 2022 BL 46179 (W.D. Pa. Feb. 10, 2022).

Coming back to Fast v., perhaps clucking one’s tongue at an errant lawyer in a footnote isn’t going to change things.  In their efforts to dredge a safe harbor in Rule 37(e), Judge Campbell and the distinguished Advisory Committee all-but-immunized the most common instances of spoliation from consequences.  Absent proof that spoliation occurred with an intent to deprive, what’s really the worst that occurs now?  The guilty party is compelled to belatedly do what they were obliged to do all along, or some split-baby fraction of same.  “Ow, my wrist!  Careful Judge, that slap nearly hurt.”

The efforts to rein in judicial discretion to punish gross incompetence has been good for business but bad for justice.  The fleeting interest in e-discovery education of 15+ years ago was driven by sanctions.  By Zubulake.  By Coleman (Parent) Holdings v. Morgan Stanley.  By Qualcomm v. Broadcom.  We never had much of a carrot supporting ESI competence, and 37(e) took away the stick.

Judges must get tougher, and demand more. Your Honors: Just because you didn’t know it when you were practicing doesn’t mean lawyers needn’t know it now. Citizens cannot hope for justice any better than you mete out.

If the bench, bar and public don’t demand competence be demonstrated to practice law, and we don’t meaningfully discourage incompetence in practice, why would anyone expect lawyer competence to improve?

If it weren’t so, I’d disclose it at the start; but to be clear in closing, I have no connection to the Fast v. case, the parties or counsel.

[1] He clearly wishes others understood Rule 37 half so well, e.g., his Footnote 2 states, “It is therefore quite frustrating that, years after the 2015 revision, some lawyers and judges are still unaware of its significant change to the law of ESI spoliation. Seee.g.Holloway v. Cnty. of Orange, No. SA CV 19-01514-DOC (DFMx), 2021 WL 454239, at *2 (C.D. Cal. Jan. 20, 2021) (granting ESI spoliation sanctions without addressing the requirements of Rule 37(e)); Mercado Cordova v. Walmart P.R., No. 16-2195 (ADC), 2019 WL 3226893, at *4 (D.P.R. July 16, 2019) (same); Nutrition Distrib. LLC v. PEP Rsch., LLC, No. 16cv2328-WQH-BLM, 2018 WL 6323082, at *5 (S.D. Cal. Dec. 4, 2018) (ordering adverse inference instructions without addressing the strict requirements of Rule 37(e)(2), and applying the negligence standard that Rule 37(e) specifically rejected).”

[2] One of my many maxims is that “a Court guards its power more scrupulously than a party’s rights.”  That’s not a slam on courts, who must scrupulously protect the sanctity of their orders lest chaos ensue.  The lesson being that parties should endeavor to convert agreements about discovery obligations into orders whenever possible because a judge is far more likely to punish a transgression of its own order than an offense to a party.  At bottom, it’s just human nature to do that, right?