Crane on Law by James Crane

In Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., the District Court of the District of Columbia examined a case that illustrated what not to do if you want to rely on the Safe Harbor provisions in the Federal Rules. (242 F.R.D. 139, D.D.C. 2007).

The class action was filed in March of 2004, yet for more than 2 years, the defendant made no attempt to stop its email system from deleting all emails more than 60 days old. The Court denied the argument for safe harbor protection and called the systematic destruction of the emails indefensible. Relying on the Advisory Committee Notes, the Court emphasized that Rule 37 requires good faith in the routine operation of an information system, which “may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information if that information is subject to a preservation obligation.”

In this case, the emails were clearly discoverable. Personally, I always enjoy court opinions that have some humor or emotion to them, and this opinion did not disappoint. The Court was struck by the defendant’s audacity in arguing that, since the emails were destroyed, they only existed on backup tapes and therefore were not reasonably accessible. The Court likened this position to Leo Kosten’s definition of chutzpah, which is: “that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.”

Good stuff.