Panel Urges Caution on Sanctions for Failure to Preserve Data

[Christine Fulgham <christine () opensecurityfoundation org>]

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202473272640&Panel_Urges_Caution_on_Sanctions_for_Failure_to_Preserve_Data


A panel of state and federal judges has voiced concern about the differing
standards for the pre-litigation preservation of electronic records by state
and federal judges sitting within the 2nd Circuit.

A limited number of federal trial courts favor hard-and-fast rules that
mandate sanctions for the failure to preserve electronic documents,
according to the report issued by the New York State-Federal Judicial
Council.[FOOTNOTE 1]

By contrast, the report notes, many state judges, prefer to apply "a simple
reasonableness standard" and to weigh the imposition of sanctions for
destruction of evidence on "a case-by-case basis."

After comparing case law in New York and federal courts, the report found
that there are potential inconsistencies between state and federal law
governing the pre-litigation duty to preserve electronically shared
information that could result in inconsistencies in sanctions for the breach
of that duty.

"It seems that those inconsistences may lead to different outcomes for
litigants depending on whether the lawsuit is in federal or State court. As
such, a potential litigant's conduct may, in fact, be treated differently in
State and federal court," the report said.

The advisory panel suggests that courts in the two systems could limit
confusion by exercising "judicial self-restraint and mutual respect" and by
establishing procedures to impose one or the other system's law governing
preservation of electronic information.

It recommends that:

• state and federal courts be alerted to these inconsistences;

• judges be reminded of their role in promoting consistency;

• federal courts consider designating such issues as "substantive" under the
U.S. Supreme Court's 1938 decision in *Erie R. Co. v. Tompkins,* 304 U.S.
64, which would give priority to state law.

[...]

_______________________________________________
Dataloss-discuss Mailing List (dataloss-discuss () datalossdb org)
Archived at http://seclists.org/dataloss/
Unsubscribe at http://datalossdb.org/mailing_list

Learn encryption strategies that manage risk and shore up compliance.
Download Article 1 of CREDANT Technologies' The Essentials Series:
Endpoint Data Encryption That Actually Works
http://credant.com/campaigns/realtime2/gap-LP1/