Judge Paul Grimm, Chief United States Magistrate Judge for the U.S. District Court for the District of Maryland, is a thought leader and at the forefront of knowledge in the field of electronic discovery. Judge Grimm has authored multiple case opinions that have become the basis for rule changes to the rules of civil procedure. He continues to be an expert in the field and he graciously took some time to talk to Discovery Brain about his knowledge and experience.

Missed the previous posts? Here  are Part 1 and Part 2.

Part 3 of 3:

Discovery Brain: Do judges differentiate in terms of severity in sanctions between people that knowingly violate eDiscovery laws or those that just do shoddy eDiscovery without malintent?

Judge Grimm: When you deal with sanctions, you end up with a multiple factor analysis and no where is that more prevalent than with potential sanctions for failure to preserve. In that particular instance, you are required by substantive law to evaluate state of mind and the more a culpable state of mind, the more probable the sanctions even if the amount of prejudice is minimal. You also have the notion of prejudice. Even if you look at existing rules like Rule 37, the court can take into consideration whether a violation was intentional or negligent. But even if you have enormously culpable conduct, but it doesn’t result in some sort prejudice or harm, then the courts are cautioned by appellate courts to respond proportionally. If someone willfully attempts to manipulate or destroy evidence or do something with a improper motive, but it doesn’t result in any harm, you have to ask yourself whether you should dismiss the case or whether it should be contempt finding, monetary actions or something remedial as the most appropriate answer. Most things in life if someone does with an “empty head, pure heart”, that may prevent on a one time basis the most severe sanctions, but the notion of “empty head, pure heart” is not a long-term winning strategy because a lawyer’s duty of competence, which is an ethical responsibility, is going to come back and there are times the courts expect that lawyers are chargeable with what a prudent person should know in their circumstances. For example, the law as it deals with spoliation is not uniform in the United States. Some circuits say that you can’t impose the most onerous sanctions unless there is bad faith. Others like my circuit say that even if you are merely negligent, if your mere negligence results in complete destruction and loss of evidence that your adversary needs to defend or prove itself, however innocently it may have happened, they have been prejudiced so greatly that sanctions are still appropriate. I think when you look at these things, there are a number of factors that are immediately relevant to the court and the parties: was there some obligation to behave a certain way, was it complied with, was the reason for non-compliance based upon excusable neglect or neglect that wasn’t excusable, was it done with pure/impure motive, what was the result and how relevant was what was lost to the claim, and finally does it impact the inherent ability of the Court to manage its docket to assure the fair resolution of the dispute? When you factor all those things together, it’s clear that state of mind is a relevant factor but one of many.

Discovery Brain: Recently there has been discussion on whether or not the federal system should move towards a uniform rule of preservation. Do you see the federal system doing that?

Judge Grimm: This exact question is the subject of a mini conference that’s being sponsored by the advisory committee of the rules of civil procedure that will take place September 8th. There are approximately 25 experts in various areas who are coming to give their views to the committee so that the committee can decide if a uniform rule of preservation and consequences of failing to preserve is an advisable, feasible, legally supportable change. I think the absence of a uniform rule is certainly something of concern for litigants who litigate in multiple jurisdictions where there is no consistent rule. If you are a national corporation and are involved in all 50 states and you have 10 different substantive rules to comply with, it’s very hard to have 10 different balls in the air at the same time trying to deal with this. Whether or not a uniform rule regarding preservation makes sense or not is very much an open issue. The rules committee is under the leadership of our chair and the committee is very concerned with this. The committee will decide if such a rule is helpful, how it would look like, what’s the authority for it and can it stand.

Discovery Brain: What do you think is the most significant trend now in eDiscovery? What do you think practitioners should be focused on?

Judge Grimm: I think it’s dawning on people that ESI is not just in antitrust, patent or commercial litigation cases. If I talk to my learned colleagues in the state courts, they tell me this comes up in automobile torts, domestic relation cases, and ordinary small dollar cases. All evidence is now digital. It’s hard to find something other than a spray painted piece of graffiti on a wall somewhere that is not digital in some portion. I think practitioners have to recognize that they can’t insulate themselves from being familiar with the issues here and the ability to handle themselves or seek technical counsel. People are beginning to become more aware of it. Law schools are beginning to become more aware of the need to have eDiscovery as part of their curriculum. Gradually, law schools are starting to say that this area needs some special attention. I think clients are also beginning to appreciate that this is a costly undertaking so there is a need to approach how they store and handle ESI from a different perspective. Moreover, courts are starting to realize that eDiscovery is a cooperative effort to find the facts from which you can settle, litigate or resolve on motions for cases. I think over time with enough good will, all the stakeholders will realize that the dispute resolution system, that has been the hallmark of the rule of law in this country, to be worth the regard that we hold for it, has got to be flexible enough to adapt going forward to meet the way in which the people that it serves does its own business. I think that the awareness is there and the challenge given the volume of cases and the speed with which technology changes, is to make sure you have flexible rules and procedures in place as technology changes.