Retired District Judge Shira A. Scheindlin did an Ask Me Anything (AMA) on Reddit Monday. She covered a lot of topics, including emerging technologies and eDiscovery.
For example, one poster asked Scheindlin what type of effect applications such as Signal and Snapchat will have on discovery, and what duty attorneys have in being aware of these types of applications. Signal and Snapchat are among many applications in which the content disappears or is inaccessible because of encryption.
Scheindlin said that where there is no duty to preserve, electronically-stored information needn’t be preserved. This is textbook Federal Rule of Civil Procedure 37(e), which governs how and when parties can be sanctioned for the loss or destruction of ESI. But Scheindlin warned that if there is a duty to preserve, then using this form of communication is essentially destruction of evidence. So parties might want to think twice about using self-destructing methods of communications, despite their appeal.
Scheindlin urged lawyers to understand how information is collected and preserved by these type of applications. And law schools should do their part as well by teaching eDiscovery, despite the fact that no casebook could really keep up with the rapid pace of evolving law and technology.
Scheindlin also said that she’s not “really surprised” that her landmark opinion in Zubulake v. UBS Warburg, which granted a discovery sanction for failure to preserve electronic records, is still influential today. On the topic of all 2015 amendments to the Federal Rules of Civil Procedure, she said that we’ve had enough discovery reform for now “and need a rest.” Scheindlin took a shot at amended FRCP 26, saying the standard for discovery should be relevance, and that adding proportionality “is an open ticket for closing down discovery when a judge thinks little of the case.”
Another poster asked Scheindlin to tackle the question of how the law can keep pace with the developments of the 21st century, with a specific nod at discussing where the United States should stand on the use of strong encryption and privacy.
“I don't think folks should ever be compelled to unlock their cellphones—certainly not in the absence of a warrant,” Scheindlin said, referencing the U.S. Supreme Court’s decision in Riley v. California. She closed by noting, “There is more to say but not in this reply.”
Now that Scheindlin is off the bench, it will be interesting to see if she’s willing to elaborate on these topics in different forums. Only time—and a slew of upcoming eDiscovery-related conferences and lectures—will tell.
Check out the AMA and Schiendlin’s views on other topics here.
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