Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
Nov. 15 — Is inherent authority—at least in terms of ordering sanctions for the loss or destruction of electronically-stored information—dead?
Practitioners can’t be completely confident that they’ve seen the last of inherent authority, even though it certainly seemed to be on life support during and after the crafting of the 2015 amended Federal Rules of Civil Procedure.
The Advisory Note to Rule 37(e), which governs how and when a court can issue sanctions for failure to preserve ESI, says that Rule 37(e), which specifies the measures that may be taken if information is lost, “forecloses reliance on inherent authority or state law to determine when certain measures should be used.”
Indeed, last year, retired Magistrate Judge John M. Facciola, previously of the U.S. District Court for the District of Columbia, told a group of lawyers that inherent authority was, for all practical purposes, gone from the sanctions space.
“There are stop points in the Rule, according to Judge Paul Grimm, who was on the Civil Rules Committee,” Facciola explained. “That destroys the inherent authority that served as the predicate for sanctions in a pre-Rule world.”
But along came Cat 3 LLC v. Black Lineage Inc., S.D.N.Y., No. 14 Civ. 5511, 1/12/16 , which caused an uproar among eDiscovery practitioners and experts.
Magistrate Judge James C. Francis IV found that the alteration of e-mails qualified as spoliation under amended 37(e), despite the plaintiffs’ argument that the evidence was restored. He went on to say that even if the spoliation at hand did not fall under the purview of the amended Rule, he was still allowed to sanction the parties pursuant to his inherent authority.
When Cat3 came down, Judge Francis talked to Bloomberg BNA about his controversial opinion.
“There is a danger that some of the Rules amendments are caricatured and we have to be careful when looking at them in the context of a particular case,” Judge Francis told Bloomberg BNA. “It’s not the case that there is now no inherent authority or that every proportionality objection is going to be sustained … things certainly have changed, but it doesn’t mean that the outcome is going to be different in every case under the new Rules.”
Former Advisory Committee member Judge Paul W. Grimm, of the District of Maryland, agreed with Francis’s opinion and when it was issued, told Bloomberg BNA that whether inherent authority is foreclosed by the Rule is not that simple.
“37(e) didn’t take action to make inherent authority unavailable … In the Advisory Note, the Committee explained it had crafted a rule that was intended to have the tools necessary to make decisions about spoliation of ESI so that courts did not need to resort to inherent authority,” Judge Grimm explained. “You couldn’t say to yourself that I don’t like the fact that with 37(e) you can’t get specific serious sanctions, and so I’m going to use inherent authority instead.”
Judge Grimm explained that the Advisory Committee note advances the notion that inherent authority can’t be used merely to circumvent 37(e).
Nearly a year later, Judges Francis and Grimm found themselves having a similar dialogue at Georgetown’s Advanced eDiscovery Institute in Washington, DC., Nov. 10-11.
Francis moderated a panel on sanctions, and put the panelists to the task of determining if he “messed up” Cat3.
Annika K. Martin, partner at Lieff Cabraser Heimann & Bernstein, said a role for inherent authority definitely still exists.
“The note doesn’t mention any case that it’s trying to abrogate,” she said. “Inherent authority can step up when Rule 37(e) doesn’t apply to the facts of the case.”
She explained that in Cat3, the evidence was altered but not lost. She suggested inherent authority could come into play in the event that evidence is fabricated or spoliation is attempted but not completed.
“How about degrading ESI, when metadata is not included in the produced version?” she suggested. “The evidence technically isn’t lost, but something quite important could be missing.”
Metadata is the identifying data that describes and gives information about other data. It’s useful during discovery because it makes finding certain documents or ESI easier by using the identifying characteristics of the metadata to sort through large sets.
Martin said that the ability to sanction behavior that arguably interferes with justice is important.
The conference closed out the next day with a question from Paul D. Weiner, who serves as Littler Mendelson P.C.'s national eDsicovery counsel. Weiner also co-chairs the Georgetown conference.
Weiner asked Judge Grimm to share his current views on the role of inherent authority.
Grimm framed the debate by explaining that the original testimony on the amendments to 37(e) indicated a concern that inherent authority could supersede the Rule.
“When the drafters were crafting Rule 37(e), we did so with a desire to occupy the field,” he said.
Grimm clarified that the Rule doesn’t specifically say inherent authority has been preempted. The advisory committee note says that judges following the Rule shouldn’t have to resort to inherent authority.
“You’d have to argue that in some way, the existing Rule is insufficient and you also have to be faithful to the law of inherent authority,” he said. “In most cases, you’d need to show bad faith.”
To contact the reporter on this story: Tera Brostoff in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Carol Eoannou at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)