digital evidence

On Tuesday night during Legalweek New York 2018, Thomson Reuters and the Association of Certified E-Discovery Specialists held a “Back to the Future: Predictions from the Bench” discussion with three former federal judges.

The session saw the judges examine topics ranging from the effectiveness of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) on civil proceedings and judges' ability to sanction to legal challenges involved with issuing search warrants for electronic evidence.

Here are three key takeaways from the judges' discussion:

Sanctions Are Far From Dead

FRCP Rule 37(e) was crafted in part to rein in the amount of sanctions civil parties occur when mishandling electronic evidence. But for U.S. District Judge Xavier Rodriguez of the Western District of Texas, the rule hasn't yet had its intended effect.

“I don't think 37(e) has had the impact that the framers intended,” he said. “We took a poll of judges a few months ago and determined they haven't seen a significant downturn in the number of sanction motions. [The rule] may have ameliorated the fear of counsel for facing the most-severe sanctions, but it hasn't reduced the number of sanctions.”

Rodriguez added that, because of the new Rule 37(e), judges' “ability to deter bad behavior has been greatly diminished, and I think what you are seeing in some of the case law is some judges looking for other avenues to sanction just because 37(e) tends to be too difficult.”

He noted, however, that judges need not look far for rules that enable sanctions, specifically citing FRCP Rules 16(f) and 26(g).

“Papered to Death”

Former Magistrate Judge David Waxse of the District of Kansas noted that, at its most fundamental level, the amendments to the FRCP expanded the responsibility to make civil proceedings “just, speedy and inexpensive” from judges to lawyers.

“I think, and I've been saying this for years and years now, that lawyers have to come to grips with the fact that the litigation system is not set up to give them a place to play or make lots of money. The purpose of the ligation system is to get disputes resolved,” he said.

But despite the FRCP's intention, civil litigation can still be as inefficient and laborious as ever. “Everybody files a motion to dismiss, everybody files a motion to summary judgment, and somehow if you get past this, the expert will be challenged by a Daubert challenge,” said Rodriguez. “That's just what we see; we are papered to death here.”

He added that such inefficiencies cut to the core of the civil litigation system: “We are a commodity. … We are competing against arbitration, and if we don't make the civil justice system speedier or economic—you know there's a reason why everybody goes to arbitration now.”

But Waxse noted that the current FRCP, at least on paper, give judges the tools to combat such inefficiencies. “If you use 26(g) properly, a lot of people would be sanctioned … because 26(g) says, if you don't have a basis for making these statements you are making, the court shall sanction you.”

The Digital Evidence Divide

In today's digital world, judges are seeing firsthand how the rise of digital evidence is outpacing the ability of the law to regulate it. “The law is very unclear on how you apply the Fourth Amendment to situations with electronic information,” said Waxse. “I kept seeing government requests for search warrants that were exceedingly broad; they were unconstitutionally broad.”

Former U.S. Magistrate Judge James Francis of the Southern District of New York noted that one of the most important cases that may define how digital evidence is handled in the modern age is one he ruled on a few years ago: Microsoft Corp. v. United States.

The case involved search warrants issued to Microsoft under the Stored Communications Act by the U.S. government. The warrants sought data from a Microsoft subscriber based in Ireland, but Microsoft moved to quash the warrant under the grounds that such SCA warrants do not apply extraterritorially.

Francis denied the motion to quash. However, “as case went up [the court system], the district judge reaffirmed, the Second Circuit reversed me and the Court of Appeals split four to four on whether to take the case en banc, and now the Supreme Court has taken it on cert, and the case will be argued in February.”

The case has caught the attention of many privacy and tech advocates. Francis noted there was even an amicus brief filed on behalf of Microsoft from computer scientists who discussed the technicalities of where digital evidence is located “based on where the electrons reside.”

Francis said he believes the Supreme Court ultimately will rule on the case “narrowly as they can, and it will really boil down to whether they view an order under the Stored Communications Act as having its primary effect in the U.S. or in Ireland.”