One Man’s Trash is Another Man’s Evidence: Why We Don’t Need New Rules, We Need Understanding, Diligence, and Enforcement of Existing Rules

One of my favorite sanctions cases begins with: “One man’s trash is another man’s treasure.” That’s how the United States Court of Federal Claims started its order sanctioning the government for spoliation in United Med. Supply Co., Inc. v. United States, 2007 WL 1952680 (Fed. Cl. 2007). The government didn’t preserve its records after suit was filed, the treasure plaintiff sought to prove its case. Instead, the government shredded the evidence as if it were so much trash. The plaintiff will never know the truth, not because the rules were unclear, but because of a complete lack of diligence and understanding on the part of the government and its lawyers.

Cases like this show that the problem with preservation cannot and will not be solved by new rules. We need education, not legislation. The pursuit of a new easy button is quixotic. Many of my friends disagree with me on this. The Discovery Subcommittee on FRCP Rules meets in Dallas on September 9, 2011, to consider several proposals to amend the rules to address preservation. See Jumping the Gun? Three Approaches to Drafting New Federal Discovery Rules. Many of the top guns in the field are going there to make presentations. I wish them well, but suspect their travel to Texas is in reality a journey to La Mancha.

United Med. Supply Co., Inc. v. United States

After the treasure trove quote the Court in United Medical Supply tore into the government for its grossly negligent ad hocery in the preservation of evidence.

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Source: e-discoveryteam.com
By: Ralph Losey