The So Called "Conflict" Between Judge Scheindlin and Judge Rosenthal is Just Fake News

I for one am tired of all the newscasters on TV screaming BREAKING NEWS all of the time over every little thing. TV News has become bogus theatre half of the time, and it is getting harder to tell which half is which. If only reliable Walter Cronkite type of reporting would come back, but then that would be bad for ratings. News is just entertainment, and poorly funded at that. Now this tendency towards sensationalist fake-news is starting to spill over into e-Discovery. The law, and those of us who dare to report and comment on the law, should be exemplars of truth and honesty and not stoop to this. We should emulate Walter Cronkite, not the latest screaming head on cable TV.  

I am sorry to ruin the battle-of-the-judges parade, but there is no big conflict between Judge Scheindlin's Pension Committee v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), and Judge Rosenthal's Rimkus v Cammarta, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010). There is no fight between these two scholars of procedure as some sensationalists would have you believe. This is just a common example of like-minds examining different factual scenarios in different jurisdictions. My blog this week throws water on the sensationalist reports and explains res ipsa loquitur too. It will never make primetime news, but I think Walter would approve. To continue reading, see: Judge Rosenthal v. Judge Scheindlin: A Bogus Battle. That's the way it is.

Comments

[John Jablonski]

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.