E-discovery: May federal courts insist that litigants “Do as I say, not as I do”?
General Counsel of Acme Widget Corp. has had a trying morning. On her desk is a motion filed against Acme last night, demanding that a federal judge sanction Acme for failing to preserve what (to her at any rate) sounds like every email that Acme ever sent or received. Taking a break to clear her head, she scans the headlines and sees:
“Here’s how the IRS lost emails from key witness Lois Lerner”
“EPA joins IRS lost emails club”
“IRS says it has lost emails from 5 more employees”
“U.S. says some healthcare emails sought by Congress are missing”
“White House Emails Case Nearing Settlement: Transparency advocates are poised to win a major victory in the two-year legal battle over millions of missing Bush-era emails.”
All politics aside, and with every reasonable presumption of good faith, it seems beyond dispute that the U.S. government has trouble preserving and producing electronically-stored information. Federal Court litigants facing sanctions motions may wish to invite the Court to look to the conduct of the U.S. Government as establishing an “industry standard” for preservation and production. They may, too, wish to search for briefs submitted by the U.S. Government, in cases where the Government is charged with spoliation, for persuasive statements of the law from the point of view of an alleged-spoliator. They may even wish to ask the Court to consider whether it is consistent with due process for the Article III branch of the Government to demand that citizens do a better job preserving and producing than the Article II branch can do.
— Bob Frey