Though retired as the highly-regarded Judge of the Southern District of New York, Shira A. Scheindlin continues to be sought after for her wealth of legal knowledge and perspective on emerging technologies and e-discovery — even on Reddit. Posters were recently treated to her presence during an Ask Me Anything (AMA) session.
Judge Scheindlin is well known for her landmark decision in Zubulake v. UBS Warburg, in which she awarded a discovery sanction for defendant’s failure to preserve electronically-stored information (ESI). At issue during the 2003-2005 case was whether the defendant was required to comply with the discovery request and produce ESI, and if that cost could be shifted from the defendant to the plaintiff. The court found that whether production costs were expensive or burdensome depended upon the format the ESI was kept on and if it was accessible or inaccessible. During the case, Judge Scheindlin developed a new seven-factor test. Her opinions, known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V, are among the most discussed and cited in e-discovery.
Per Bloomberg BNA, Reddit posters’ questions included the potential effect of applications like Signal and Snapchat, on which content disappears or becomes accessible, on discovery, and what obligation lawyers have to be aware of these applications. The retired judge stated that on the one hand, when there’s no duty to preserve, there’s no need to preserve the electronically-stored information (ESI). On the other hand, when the duty is present, using applications like these is equivalent to destroying evidence and sanctions can follow. In general, she states, parties may want to think twice about using these types of applications to begin with. She also believes that lawyers should stay aware of these applications and that there should be more e-discovery curriculum in law schools.
The Reddit AMA also revealed her opinion on the Federal Rules of Civil Procedure: there’s been enough discovery reform, and it’s time for a rest. She also criticized the amended Rule 26, saying adding proportionality to the standard for discovery is a mistake and only relevance should be considered. For Scheindlin, including proportionality provides “an open ticket for closing down discovery when a judge thinks little of the case.”
Another astute poster asked for Scheindlin’s opinion on how the law can keep up with 21st century developments, specifically around the United States’ stance on strong encryption and privacy. She referenced the Supreme Court’s unanimous decision in Riley v. California, which stated that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. Without a warrant present, people should never feel forced reveal the contents of their phone. She also said she had more to say on this topic at a later date.
There will surely be other opportunities to hear Judge Scheindlin’s many opinions, including her controversial ruling on stop-and-frisk, as she’s a big draw at e-discovery-related conferences and events.