I respectfully disagree with my colleague Mr. Losey. While I have no doubt that these two fine jurist have no axe to grind with each other (and perhaps have enjoyed a lunch or two not to mention a few collaborations on e-discovery issues), Rimkus stands as a well written reminder that there should be limits on the inherent power of the court to sanction people for alleged preservation errors. Judge's have a lot of power, and that includes what is written in an opinion. I do not believe a sentence on whether the Pension Committee has application beyond the 2nd Cir. was merely a scholarly exercise designed to highlight the differences between the circuits. If it was a scholarly exercise, commenting that the opinion in Pension Committee may not pass muster under Chambers is not a comment further pointing out the circuit differences or pointing out that questions about spoliation limits on e-discovery need a trip to the Supreme Court for clarification. It was a comment designed to remind people that we may be swinging to far toward a no-stone-unturned preservation model. To me the opinion in Rimkus is an important judicial counterbalance to the trend toward severe sanctions for negligent spoliation of ESI. Despite clear intentional spoliation of evidence in Rimkus (these folks deleted stuff intentionally - they did not let an auto-delete policy do their dirty work), Judge Rosenthal refused to hold there was bad faith, as a matter of law. I believe she was well within her authority to find bad faith and so charge the jury. She declined. To me that is a powerful statement. On the other hand, Judge Scheindlin held that the sort of conduct that goes on in practically every case is, on its face, sanctionable. I agree that the opinions are very complimentary, but the conclusions are different for reasons that are, I submit, beyond the applicable law.

Happy to. Please contact me at [email protected]

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