Lawyers spend a ton of time thinking about intent.  Intent is what separates murder from negligent homicide.  It’s key to deciding whether minds have met to form a binding contract.  Intentional torts are punished.  Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation.  The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.

Intent is the attitude with which one acts.  It can be general intent in the sense of acting in the way you meant to act, or it can be specific intent in anticipating and seeking a specific outcome.  Intent is all in the mind.

Proving intent is one of the harder things trial lawyers do.  Short of the rare Perry Mason moment when a party confesses intent ( i.e., “You’re damn right I killed him, and I’d do it again.  The bastard NEEDED killing!!”), lawyers must resort to evidence that illuminates the intent of a specific person or corporation or that of a reasonable person or corporation similarly situated in terms of what he, she or it would have thought, anticipated or known.

When lawmakers demand proof of intent, they necessarily contemplate that evidence of intent be brought forward.  Lawyers must be able to delve into intent and discover direct and circumstantial evidence of intent.  We must be permitted to probe the knowledge, experience, attitudes, motives, expectations and prejudices of the person or entity whose intent is at issue.

Because intent is elemental but difficult to prove directly, the law gives leeway to the discovery process.  For example, Courts generally prohibit evidence of other wrong acts or bad character to prove a specific act in accordance with character or traits but make an exception and permit the evidence to come in when prior bad acts show intent. Federal Rules of Evidence Rule 404(b)(2).

All of this is prelude to discussing the broader impact of amended Rule 37(e) of the Federal Rules of Civil Procedure, now requiring a finding of an “intent to deprive” as predicate for sanctioning evidence destruction and discovery obstruction.  Continue reading →

If you are in New York on Monday evening, please come hear me interview Nina Totenberg, NPR’s legendary legal affairs correspondent, and honor your peers in the corporate and government e-discovery world who are being recognized for excellence in e-discovery strategy, process and success.  We will also honor noted author Michael Arkfeld for his contributions.

Thanks to our hosts, Zapproved et al., there will be ample refreshment and loads of friendly folks, making for a delightful evening.  It will be free, fun and illuminating.

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Bill Butterfield died on Tuesday, December 13 after a brief, silent battle with cancer.  He was a good man and an exemplary attorney.  Knowing that I will never meet him again, I mourn that I cannot know him better.   I know well Bill’s tireless efforts to protect every litigant’s right to obtain full and fair discovery.  His was a revered and respected voice at The Sedona Conference, where he stood against multitudes who would cripple our right to seek the truth that lives in electronically-stored information.  Bill employed canny strategies that the naysayers couldn’t match: He was sensible, practical, courteous and kind.  Bill listened.  He considered, and he contributed.  Bill was a worthy opponent to many, an enemy to none.

Exactly five years to the day before he died, Bill testified before a subcommittee of the House Judiciary Committee concerning electronic discovery.  I watched Bill’s testimony and saw the poise and candor that distinguish a good advocate from a great one.  I was invested in Bill’s success as he’d done me the honor of seeking my thoughts about his testimony the weekend prior.  We had a nice chat, and I shared a memo with talking points afterward that he encouraged me to publish.  I was pleased to see Bill touch on those points in his Congressional testimony, but I don’t imagine they were mine alone.  Bill knew e-discovery as well as anyone, and I expect he sought advice from many who till this field.  He was wise that way.

I am flattered as well that Bill sought to engage me in his cases on several occasions.  For one reason or another, I had to decline each time; so, now I rue having missed the opportunity to work with Bill as his counsel.  That would have been nice.  I expect I would have learned a lot, for Bill, a former Eagle Scout, set a fine example for us all.

I send my earnest sympathies to Bill’s wife, Susan, his family, partners at Hausfield and many friends. Though I know he will be remembered in many lasting ways, like a scholarship or other commemoration, Bill’s legacy is the balance he brought to the last decade of e-discovery standard setting and rule making efforts.  At a time when we really needed someone like Bill Butterfield to step in front of the tanks, we were fortunate indeed that Bill stepped in and stepped up.

Each September for the last four years, I’ve had the pleasure to participate in a splendid e-discovery conference in Portland, Oregon called PREX, so-called because the whole event is devoted to PReservation EXcellence.  It’s sponsored by Zapproved, but unlike other developer events, it’s less a celebration of self than a product-neutral effort to promote better practices in mounting a defensible enterprise legal hold.  A bevy of prominent judges and thought leaders turn out to speak; but, the real star of PREX is Portland itself, resplendent in those precious, late-Summer weeks when one can count on abundant sunshine.  If you’re looking for fine, fun education in excellent company, pencil PREX in for  September 13-14, 2017.  There’s no better time to visit Oregon, and no better event on the topic.

One of the panels this year was “The Perfect Preservation Notice.”  I suspect I was asked to join because I’d written a widely-circulated paper many years ago called, “The Perfect Preservation Letter,” wherein I explored the desirable elements of the letter one should send to an opponent affording notice of ESI sought preserved in anticipation of electronic discovery.  My title was tongue-in-cheek, as there’s no such thing as a perfect “form” preservation letter, a point I made as counterpoint to composer Steve Goodman’s claim to have written the perfect country and western song by virtue of the lyric,

“I was drunk the day my mom got out of prison
And I went to pick’er up in the rain.
But before I could get to the station in my pickup truck,
She got runned over by a damned ol’ train.”

                Song: “You Never Even Called Me by My Name“

My message was that, though perfect isn’t the standard, neither is lousy.  We can approach perfect by a modicum of thought and incorporating a few essential elements.   Continue reading →