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The e-Discovery in Education Series

By Scott Bauries

Sept. - Dec. 2008

Links to Original Posts (Contains Comments)

  1. Discovery Rules And State Education Laws
  2. The E-Discovery Amendments And Electronic Technologies In Schools (Email And Local Documents)
  3. The E-Discovery Amendments To The Federal Rules Of Civil Procedure And School District IT (Document Retention Systems)
  4. The Recent E-Discovery Amendments To The Federal Rules Of Civil Procedure And Communicative Technologies In School Districts (Intro) 


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The Recent E-Discovery Amendments To The Federal Rules Of Civil Procedure And Communicative Technologies In School Districts (Intro)

DateThursday, September 25, 2008 At 01:27PM | AuthorScott Bauries

Hello to all readers of The Edjurist. I want to thank my colleague, Justin Bathon, for allowing me to share my ideas as a contributor to this forum. My first set of posts is partly inspired by an online discussion (see comments) that Justin forwarded to me. The discussion at Wes Fryer's blog in part concerned the implications that the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) have upon technology use in the schools, particularly Web 2.0 tools such as blogs, wikis, podcasts, Wimba, social networking sites, and microblogs.

In reading this limited exchange, it occurred to me that the issues generated by the recent amendments may have caught some school district officials off guard and could have caused them to form misconceptions about the import of the changes, so I have designed this series of posts to offer both a basic primer on the most important changes made in 2006 to the FRCP, as well as some thoughts as to how these changes affect the daily work of school officials. The Honorable Lee Rosenthal has already introduced a seven-part overview of the amendments themselves in the Yale Law journal Pocket Part, and I do not seek to duplicate his efforts here. My purposes here are instead to (1) demystify the discovery process, as well as the recent changes made to it concerning the treatment of electronic information, for education practitioners; and (2) offer some thoughts as to how school leaders and teachers might approach their jobs with the amendments in mind.

The provisions of the FRCP that are the subject of this series of posts mainly focus ondiscovery issues. For those with little to no legal background, discovery is a term that we use to describe the various means by which opposing parties in litigation (and sometimes third parties) can be required to share information (potential evidence) with each other. The FRCP governing discovery do not explicitly regulate any activities that occur prior to the onset (or at least the imminence) of litigation. Once litigation has begun, though, the discovery rules govern, among other things, (1) the information that must automatically be shared with an adversary; (2) the information that may be requested from an adversary; (3) the information that may be withheld from an adversary; (4) the procedures for requesting and withholding information; and (5) the consequences of overreach in seeking or withholding information.

The FRCP amendments adopted in December 2006 mainly altered the existing discovery rules by introducing explicit provisions governing the treatment of“electronically stored information” throughout the litigation process. Most refer to these provisions, among others, as “the e-discovery amendments.” I will address the implications of the specific changes to each of the rules in future posts, but I want to use this introductory post to address the general discovery process and the role of electronically stored information within it.

To begin with, the discovery process does not actually commence until a complaint is filed (or at least until such time as a potential school district defendant reasonably anticipates that it will be sued for some specific thing). Does this mean that discovery is irrelevant until litigation is imminent? Absolutely not. It is a very common practice for companies and governmental entities to design many aspects of their organizations with the prospect of eventual suit and discovery in mind. For example, a district may design its paper filing systems to facilitate easy retrieval and review of relevant information. Or a school may have the practice of creating transcripts or other records of all parent-teacher-student meetings. Each of these actions, however, is a business decision. That is, the action is not compelled by law, even though the action may be advisable considering the litigious nature of our society.

Further, the discovery rules—as they relate to opposing parties in litigation—only apply to information that is in the possession or control of a party. If a school district or employee once had possession or control of certain information, but the information either no longer exists or is now in the possession or control of someone else, then the district or employee cannot be required to produce the information to an adversary in litigation and cannot be punished for the failure to produce it, with one very important exception. If the district or employee no longer possesses the information because the information has been negligently or intentionally destroyed as a direct response to the fact or prospect of litigation, then sanctions can result.

Finally, until recently, electronically stored information has always been treated similarly to physical documents in discovery. That is, a request for, say, emails on a specific topic or authored by a specific individual has always been reviewed and evaluated as though it were a request for physical paper memos or letters. However, as the legal community came to understand the nature of electronically stored information and to use it more frequently in litigation, it became clear that the existing rules were inadequate in dealing with such information. Recognizing this problem, the e-discovery amendments introduced some specific procedures and safeguards relating to the treatment of electronic information. However, the fact remains that electronic information consists essentially of "documents and things," just not in a physical format.

With these concepts in mind, it would be best to first explain what the e-discovery amendments did not do. As I mentioned above, the e-discovery amendments for the first time introduced into the FRCP explicit provisions regulating the disclosure and production of electronically stored information. Since then, a misconception has developed among some public education practitioners that institutions using such information must therefore now archive all electronic information in case it is later needed in discovery, despite their prior practices and despite the lack of any anticipated litigation concerning the information in question. No such independent duty was created by any of the e-discovery amendments adopted in 2006, and no such duty exists anywhere else in the FRCP (although state education laws or administrative codes may require otherwise). As I will explain further in a future post, under the FRCP, an institution may be required to halt the routine destruction of electronically stored information once litigation has begun, but outside that limited circumstance, the e-discovery amendments do not require the archiving of any electronic information not previously stored.

As to the use of Web 2.0 technologies in education, then, it is unlikely that the e-discovery amendments will reach much of this information because, if it is stored at all, it is usually stored by a third party, such as a blog hosting site (and is therefore in that party’s possession and control, rather than the district’s). As to the use of other electronic communicative technologies, such as email, the amendments clearly apply, and the remaining posts in this series will address the specific changes that were made to the FRCP and how they impact the daily work of education practitioners and leaders who use these technologies.

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The E-Discovery Amendments To The Federal Rules Of Civil Procedure And School District IT (Document Retention Systems)

DateWednesday, October 1, 2008 At 04:23PM | AuthorScott Bauries

This is the second installment in a series of posts examining the effects of theamendments made to the Federal Rules of Civil Procedure (the "FRCP") in 2006 on technology use in schools.  In the initial post, I provided a broad overview of thediscovery process and the role of electronically stored information within it.  This post concerns the role of the IT staff of the school district or school site in e-document management.  Based on the results of additional research, this post also attempts to further explain a misconception identified in the initial post in this series.  

The e-discovery amendments added several new requirements to the FRCP.  Several of these are directly relevant to school district IT personnel.  First, both Rule 16(governing initial scheduling conferences with the judge) and Rule 26(f) (governing the parties' initial planning meeting prior to the Rule 16 scheduling conference) were amended in 2006 to expressly require that opposing parties discuss and create plans for the scope and form of discovery of electronically stored information right after litigation begins.  Rule 16 also now explicitly empowers the judge to resolve any conflicts in this area prior to the commencement of discovery.  Second, Rule 26(a) has been amended to require that, prior to discovery, the parties disclose to each other the nature and location of any electronically stored information that each party will use to support its claims or defenses.  These changes require that a school district's lawyers know at least four things: (1) what kinds of electronic information are stored in its systems; (2) the location of this information; (3) the content of this information (or whether the information can be searched by content); and (4) the possibility and likely cost of accessing the information.  This is where school IT people become very valuable to a school district's lawyers.   

To begin with, I return to a misconception that I identified in the initial post in this series.  In that post, I stated that school district personnel have mistakenly concluded that the adoption of the e-discovery amendments made it a requirement that all school districts now archive every single bit of electronic data passing through their systems.  This misconception had led many school districts to effectively prohibit the use of essentially non-archivable media, including various Web 2.0 tools like this blog.  I have recently discovered that the source(s) of this misconception and the resulting overreaction at the school district level could have been a few "articles" published by providers of electronic document management services and widely read in the IT community (though not so widely read in the legal community).  I assume that the intentions of these providers were benign, but it appears that, in their quest for new customers, they have allowed their marketing materials to imply (and in one case explicitly state) that all electronic information passing through an orgainization's server must be archived.  Of course, these claims are followed by descriptions of the great archiving and information management services available from these providers.  To clear up any misconceptions generated by these publications or any others, I repeat my statement from my initial post that the FRCP do not independently require the archiving of anything prior to litigation (or at least the reasonable expectation of it).  The FRCP are rules about procedures to be followed by parties and lawyers during litigation.   

Does this mean that school district IT personnel can now forget about the FRCP?  Absolutely not.  Does it mean that we can all stop archiving everything?  Not if you want to be smart and proactive.  You see, despite the fact that the FRCP do not require the archiving of every bit of electronic information that comes through your system, if your district is sued, you really must have a clearly defined process for managing your electronic information.  The amendments described above should give you some clue as to why this is so.  For example, the district's lawyers do not want to show up at the scheduling conference before the judge and have to argue that the school district never saves anything.  That argument would be implausible and would probably run counter to at least some substantive laws (such as state laws requiring the retention of student records).  Also, certain archived files may contain confidential student data or similar sensitive information, and IT personnel should be able to apprise the attorneys of the locations of these files, so they can make appropriate objections or seek protective orders to prevent making the information public.  Thus, you should be able to instruct the district's attorneys as to the nature, location, and likely content of the information that the district does store, so the attorneys can participate in their scheduling meetings and make their initial disclosures.  Knowing these facts may be made easier through the use of a private electronic document management service, but it does not follow that you have to employ one of these services to save everything electronic.   

Another reason to have a clearly defined electronic document management system that can be explained in clear terms to a judge is because it could provide your district with a defense to a motion for sanctions or a potential contempt citation.  The amendments to Rule 26(b) (governing the scope of discovery) and Rule 37(providing for sanctions for failure to participate in discovery) provide the reasons.  Rule 26(b) provides that the general scope of discovery extends to any non-privileged information in the custody or control of the party from whom it is requested.  However, Rule 26(b) also limits the scope of discovery of electronic information, providing that a party need not produce such information if the party can show that it is not reasonably accessible due to undue burden or cost.  Having a clearly defined document management system aids in meeting this burden.  Of course, the opposing party can overcome this defense if it can show good cause for needing the information, but courts are more receptive to parties who truly understand their systems and can explain why certain documents are effectively irretrievable.  Similarly, Rule 37 provides a party with a defense to a motion for sanctions for failure to provide requested information if the party can show that the information has been "lost as a result of the routine, good-faith operation of an electronic information system."  Case law has applied this defense to systems set up to delete information that is of a certain age, for example.  IT people can assist the school district's attorneys by being able to (1) explain how the electronic system determines which files to automatically delete; and (2) justify the procedures (for example, by explaining the burdens that retention would place on the system's storage capabilities).  Of course, once a lawsuit is filed or is reasonably anticipated, the school district's attorneys will typically issue what is known as a "legal hold notice," which will require that even routine destruction or deletion of documents cease until further notice.  Thus, even in the absence of a motion for sanctions, IT personnel should have a good handle on what the system automatically deletes and how to stop this process if necessary.  

The final reason to have a clearly defined document management system arises out of Rule 34 (governing the discovery of electronically stored information specifically).  Rule 34 provides that electronically stored information is discoverable.  It also provides that it must be produced (if relevant, reasonably accessible, and non-privileged) "in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable," unless the parties or the court determine otherwise.  This rule requires of IT personnel that they be familiar with the forms in which all archived materials are maintained.  Much litigation exists over the question of the form of production, and the main reason for this litigation is metadata.  For those readers with little IT background, metadata (which my colleague Dr. Bathon appropriately refers to as "breadcrumbs") consists of information "behind" a visible document, such as the author(s), versions, dates of creation, modifications, uploads, and many other potentially revealing bits of information.  For obvious reasons, producing parties always want to produce information in a sanitized format (e.g., as imaged files with no metadata), while requesting parties always want the data in "native" format (i.e., containing all metadata).  Much money has been spent on these fights.  In litigation, school district IT personnel should be able to assist the district's attorneys by explaining the nature of the metadata in the documents, and this, like all the other functions outlined in this post, requires a clear understanding of the storage mechanisms used in the district.    

Hopefully, this very general overview of the IT issues created by the e-discovery amendments will help.  My next post will focus more on the technologies that teachers and principals use every day and the implications that the e-discovery amendments have upon the use of these technologies.

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The E-Discovery Amendments And Electronic Technologies In Schools (Email And Local Documents)

DateThursday, October 9, 2008 At 11:01AM | AuthorScott Bauries

This is the third installment in a series of posts concerning the amendments made to the Federal Rules of Civil Procedure (the "FRCP") in 2006, most of which concerned thediscovery of electronically stored information.  This installment focuses on the implications that the e-discovery amendments have on the use of email by school employees, as well as on the saving of documents on local work stations. It is hard to imagine a school district or university in the industrialized world where email is not widely used.  In fact, in most educational institutions, email is the most preferred form of communication because it saves time and paper, and therefore money.  The old ways of sharing information among education professionals through paper memos and fliers sent by inter-office mail are rapidly disappearing, and most educators are increasing their email contacts even with students and parents.  Most school personnel also have their own computer workstations these days, and the vast majority of these personnel keep at least some electronic documents saved on their hard drives.  These recent developments, coupled with the recent e-discovery amendments, give rise to certain issues for educators and school leaders.    

The most basic question in the context of this series is: Is information initiated or stored at the local school site discoverable in an action against the district?  The basic answer to this question is a resounding "Yes."  All information at a district site in within the district and under its "custody or control" (the touchstone of discoverability).  Even before the e-discovery amendments, most electronic information was discoverable as "documents" under Rule 34, and subject to the required initial disclosure requirements of Rule 26(a).  As of 2006, the initial disclosure requirements of Rule 26(a) explicitly include electronically stored information, such as archived emails and locally stored files.  The provisions relating to the scope of discovery in Rule 26(b) also now explicitly mention "electronically stored information."  Further, the provisions of Rule 34 (governing categories of information that can be requested in discovery) also now explicitly provide that "electronically stored information" is discoverable.  Of course, "electronically stored information" includes literally anything that is stored electronically anywhere in this school district's property, so anything that is either initiated or stored locally at a school site is potentially discoverable in litigation.  

How does this work?  In most litigation, the parties (sometimes with the intervention of the court) will agree on a "protocol" for obtaining each others' electronically stored information.  Generally, email is exchanged through a district-wide server, so the discovery of email is at the same time easier, potentially broader, and possibly more expensive than the discovery of locally stored files.  Usually, the parties will agree on some kind of search term (or set of terms), or they will agree to a category of emails (such as all emails in which Principal X is the sender), to limit the information to be produced.  Once that occurs, the central system is searched, the emails are reviewed for privilege issues, and they are produced to the other side.  If, however, litigation involves allegations relating to documents that might have been stored locally on a single computer's hard drive, the issue can become much more complicated.   

You see, every single photon of electronic information that exists in a computer's RAM, even for a second, is stored on the workstation's hard drive (if only for a limited time).  This means every Internet site, every version of every document, every pop-up ad, every instant message, etc.  When a file is "deleted" from a computer, it still exists there--it is just not recognized as a file.  The space that the file occupies on the hard drive now exists for "overwriting," but until it is overwritten, a file remains on the hard drive and can be recovered through complicated activities called "computer forensics" (like CSI, but entirely inside your computer).  Also, every file on a computer's hard drive contains "metadata," or information that exists in the file, but which may not be visible when the file is opened.  This metadata can include basic information about the document (creator, last date modified, etc.), but it can also include other information potentially useful in litigation, such as whether the file has ever been copied to a thumb drive.  Parties often fight about whether a requesting party should be able to view metadata, and the courts of the United States are all over the map as to whether electronic information must be produced with or without metadata.  When an adversary believes that a local work station contains information relevant to the action, the adversary often makes a request for the computer itself first.  Yes, the actual computer.  Usually, this request is viewed as too burdensome (how can you work if your computer is gone?), so the parties agree to have the hard drive "imaged," which means that a computer forensics expert is called in to make an exact copy of the hard drive.  Then, the parties fight over whether the requesting party has carte blanche to search the entire imaged drive for useful information (including metadata) or whether the requesting party must request narrower categories of information to be produced from the imaged drive after review by the producing party.  Of course, every litigation is different, but this procedure is pretty standard.    

So what does this mean for me as a school-site employee?  Well, in the most basic sense, most of you will, at some point, have some involvement in litigation by or against your district, even if only your electronic communications and files are truly "involved."  Consequently, you would do well to know what your role will be and how you can best prepare for that role if you ever have to fill it.  Often, when litigation begins, you will receive what is referred to as a "litigation hold notice."  This notice will take the form of a paper memo instructing you to cease any destruction of paper or electronic documents until they can be reviewed.  If email is at issue, the notice may ask you to move all of your archived emails into a central folder and refrain from deleting any email until further notice.  Sometimes, there will also be a request that you identify the folders in which your emails are stored so they can be exported remotely.  There will also always be an instruction that you not delete any file from your hard drive.  If you ever receive one of these notices, DO NOT IGNORE IT!  Your district could be subject to heavy sanctions if you do.  Also, it's not a good idea to start moving files around unless you are specifically instructed to do so.  It could create the appearance of impropriety (i.e., an attempt to hide harmful data) once your system is analyzed forensically.  Basically, once you receive a hold notice, you should do exactly what it says and no more.  Leave your system as it was on the day you received the notice, and do not delete anything that comes onto your system from that date forward.  

These suggestions might cause some of you to ask what you should do if you customarily use Web 2.0 tools such as Twitter.  As I pointed out in the other two posts in this series, only information within your custody or control (or the custody or control of the school district) is discoverable.  It is my understanding that any actual archiving of Web 2.0 material typically occurs at a third-party vendor site, and it would be that third-party vendor's responsibility to save it if it becomes relevant to litigation.  If you do host your Web 2.0 content on your system, though, it is likely that you must save it if a litigation hold is issued.  Also, if your Web 2.0 tools cause information to be placed into your Temporary Internet Files or some other temporary storage area on your hard drive, you should not actively delete the information because it is in your custody and control.  Your school district's attorneys may also want you to disable any automatic "clearing" of the temporary files until further notice.   

The foregoing suggestions apply once a hold notice is issued (usually once litigation has begun).  You can also take certain actions to make sure that you are prepared for any litigation not yet contemplated.  First, be careful not to use your school district's email system to send anything that you would not want to appear on the front page of your local newspaper with your name under it.  As a litigator, I have seen all manner of strange, stupid, insulting, and even risque communications and attachments in emails that I have reviewed for production in discovery.  Some of these would merely be embarrassing to the sender, but many could embarrass the district, as well.  Once something is produced in discovery, it has the potential of becoming part of the public record in the case.  Think about that.    

Also, remember that a request for email typically includes not only the email itself, but all emails in the same "trail" of emails, as well as all attachments to all emails in the trail.  The more attachments that emails have, the more fighting that will occur as to the "form" of production, and the more attorney time (and therefore school district money) will be required for document review.  Of course, we all must use attachments at times, but some people go way overboard, causing substantial amounts of money to be spent in e-document review in later litigation.  One particularly money-wasting practice is to include in all of your emails some kind of graphic signature or avatar of yourself.  This may seem cute, but each of those graphic images becomes one or more "attachments" to your email when it is being reviewed for production in discovery (at least if your district uses one of the more common review programs, such as Summation), and these attachments are often indistinguishable from other files that may contain scanned legal documents or other relevant data.  In practical terms, let's say that your system has 1,000 emails in which you are identified as the "sender" (not far-fetched at all today).  Let's also say that you have your email preferences set up so that, every time you send an email, the system "signs" it for you, and that this "signature contains a graphic version of your name (e.g., bubble letters) and an avatar (e.g., a frog or something).  Now, instead of 1,000 files to review, the attorney has 3,000--and those are just your emails.  Attorneys charge by the hour . . .   

As to your locally-saved documents on your hard drive, the best suggestion that I can make is, to the greatest extent possible, keep all information saved on your workstation strictly professional.  Of course, family pictures and other such material may not cause any problems in litigation (other than the money spent on attorney time in reviewing them for production), but it is a good practice to limit the amount of personal material as much as possible, particularly if that personal material could be viewed as embarrassing to the district or school (or even to yourself).  Above all, be very careful about storing student information on your workstation.  For example, if you use some kind of locally stored grading program (or even an Excel spreadsheet) with individually identifying information on it, you should be aware that the school's attorneys need to know of its existence very early if your work station has been requested in discovery.  Often, this will allow the attorneys to make a timely and proper objection to production based on confidentiality, and you will have helped them immensely. 

Of course, I am just scratching the surface here, and I do not mean to make the e-discovery process sound unduly scary.  For the most part, e-discovery has improved the litigation process, but we all must be aware that this new area of law is both relevant to our daily work lives and far from clearly defined.  My final post in this series will address an open question on conflicts between the FRCP and state law.

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Discovery Rules And State Education Laws

DateThursday, December 11, 2008 At 03:32PM | AuthorScott Bauries

This post is the last (for now) in a series of posts addressing e-discovery and the effects that it could have on educational practices. I am posting this for somewhat intellectually selfish reasons, as the issues addressed here will be more interesting to legal academics and education policy researchers than teachers and principals. However, the idea for it came to me based on a comment to one of my earlier posts. The commenter, Joel from Wisconsin, asked me about potential strategies for navigating the often contradictory requirements of state privacy law (his state has two laws simultaneously requiring the retention and destruction of the same records after a certain period of time).

After I responded briefly to Joel's post, it occurred to me that IT personnel and school district lawyers in Wisconsin, which apparently has a law mandating the destruction of electronic records containing personally identifying student information on the first anniversary of a student's last day in the system, might be faced with an irreconcilable conflict if such records were to become relevant to ongoing litigation which lasts more than one year in federal court. The state law would require that the records be destroyed, but the federal discovery rules, including the recent e-discovery amendments, would impliedly require its retention during the litigation.

In ordinary cases of conflict between a federal civil rule and a state substantive law, this question would be answered through the application of the Rules Enabling Act (the "REA"), 28 U.S.C. § 2072, the federal statute empowering the Supreme Court to promulgate rules of practice and procedure for the federal courts. The REA, in authorizing rule-making authority for the Court, also limits that authority. Under § 2072(b), a Federal Rule of Civil Procedure ("FRCP") promulgated under the REA may not "abridge, enlarge, or modify any substantive right." If a discovery rule in the FRCP were to explicitly require the retention of personal information that state law says should be destroyed (assumably to protect the student's right to privacy), then the court would be faced with a clear federal-state conflict, and it would have to determine whether to apply the federal rule.

However, no FRCP provision explictly requires the retention of any information. Rules 26, 33, and 34 explicitly require the production of information, but they do not contain any de jure requirements for retention. These rules instead merely imply a de facto duty to save the information that might be requested or that would automatically be deemed relevant. Thus, they do not explicitly contradict a law such as Wisconsin's. Rule 37, through its provision for sanctions in the event of the failure of a party to participate in discovery, also implies that a party can be sanctioned for discarding information specifically requested or known to be relevant, but it imposes no explicit independent duty to save anything.

Rather than from the FRCP, the federal duty not to destroy information once litigation has begun comes out of common law. The term for such destruction is "spoliation of evidence." As mentioned above, if a court finds that spoliation has occurred, Rule 37 empowers it to impose sanctions on the spoliating party, including instructing the jury to presume that a fact relevant to the lost evidence has been proven. In extreme cases, the court can even enter judgment for the non-spoliating party (if the spoliator is the defendant) or dismiss the complaint with prejudice (if the spoliator is the plaintiff). Thus, the hypothetical Wisconsin school district will not want to be subject to sanctions under Rule 37 for destroying student records relevant to litigation. So, what can the district do? Does it have to follow the federal rule impliedly requiring it to violate its own state's law?

This is a question that could depend on either the validity of FRCP 37 or its scope, even though the actual duty not to spoliate comes from common law. This is because Rule 37 cannot operate to place sanctions on a party unless the party has violated some discovery duty outside Rule 37.  Under Supreme Court precedent, a FRCP is valid under the REA as long as it "arguably regulates procedure," and it does not "abridge, enlarge, or modify substantive rights." Of course, all of the rules providing requirements for requesting and producing documents, as well as the rule providing standards for sanctions in spoliation situations, at least "arguably" regulate procedure. However, to the extent that these rules are construed as requiring the retention of documents, the retention of which impacts the substantive privacy rights of state residents, do they "abridge" or at least "modify" such rights? Supreme Court authority holds that "incidental" effects do not matter, but a concurring opinion in one case would hold the REA violated if the FRCP in question would "frustrate the regulation of the primary conduct" of state residents. The question under the REA thus could be whether sanctions for spoliation under FRCP 37 "incidentally" impact or "frustrate the regulation of" state privacy rights in student records. It is not clear what the answer to thisquestion is, and the Supreme Court has not helped to answer it, as it has never struck down a procedural rule for violating the REA.

Resolving this dillemma may depend on whether the court conceives of the REA as an absolute limitation on Congress's delegation of its lawmaking powers to the Supreme Court, or whether it is instead a rule of construction, mandating that all FRCPs promulgated pursuant to the REA be interpreted and construed such that they do not have the effect of abridging, enlarging, or modifying any substantive right. The Court has at times construed FRCPs narrowly, such that they do not cause any conflict with state substantive law. In the Wisconsin hypothetical case, if the court were to approach the REA as a rule of construction, it could easily allow FRCPs 34 and 37 to operate by holding that the court cannot sanction conduct mandated by state substantive law. Of course, no one knows whether a court would do this, so (assuming that the plaintiff has pled a proper case where jurisdiction, venue, etc. are not at issue) it might be most prudent for the hypothetical district to seek a protective order from such a court immediately upon commencement of the litigation, asking the court to rule on the preservation issue at the outset.

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