'Sekisui' Shakes Up Sanctions Analysis for Evidence Spoliation

, New York Law Journal

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In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison write: There is an encouraging trend of courts determining the propriety of sanctions for spoliation of electronically stored evidence with reference to the proposed amendment to Federal Rule of Civil Procedure 37(e). Judge Shira Scheindlin has recently weighed in on the future of sanctions for the destruction of evidence, however, and expressed serious reservations about the proposed changes to Rule 37(e).

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    Navigating the legal field is what people hire lawyers to do. Any non-lawyer can read and follow clear rules; but the law is more than a set of clear rules and judges are not just computers. Enormous amounts of lawyer time and taxpayer money has been spent on the quest for clear discovery rules where one size fits all and settles all disputes. Before and since that Quixotic Quest, Judges throughout the country have resolved discovery disputes including ESI issues for years using competing discovery concepts, factual analysis, experience, judgment, common sense, intelligence, reasoning etc. Judge Scheidlin decided Zubulake issues without new rules. She seems to realize that the answer to discovery is not in the rules but in the players---lawyers and judges--- and the facts. Today, when participants do not follow existing rules, the rulemakers think the solution is in more rules saying we really mean it.

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