Discovery Rules and State Education Laws

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.

Comments

[Jim Gerl]

I don't quite get this point Justin. My experience with federal judges causes me to conclude that they will hand you your head if you make a motion relating to spoiling evidence.

I guess i'm having trouble seeing how the destruction of paper is a substantive right. Even if it is, wouldn't the supremacy clause favor the federal rules? Your point is interesting, but I see some potential landmines in practice.

Jim

[Scott Bauries]

Jim,

Thanks for the comment. Let me try to address your points. First, under no circumstances should anyone advocate moving for permission to spoliate evidence. The appropriate motion here would likely be one for a protective order, so that the information in question can be identified and sequestered or placed under seal for attorneys' eyes only with instructions to destroy it at the conclusion of the litigation. We do this all the time with trade secrets. My point is that this motion should be made early to minimize the potential for conflicting duties under state and federal law.

Your point about the Supremacy Clause is certainly correct where we are talking about a congressional statute or a federal constitutional provision. However, where the conflict in question is generated by a fedeal rule of civil procedure, the Rules Enabling Act is what determines its validity and applicability. The Supremacy Clause merely asks whether Congress had the power to enact the subject legislation, while the REA requires that the rule in question (1) regulate procedure in the federal courts; and (2) refrain from "abridging, enlarging, or modifying substantive rights." I am assuming that there is a substantive right to privacy at issue under the Wisconsin statute. If so, then we seem to have a conflict, depending on whether the scope of federal Rule 37 is broad enough to cover the Wisconsin practice.

Hence, the question: assuming that the scope of Rule 37 is broad enough, does the apparent effect on substantive privacy rights invaidate Rule 37, or does it make necessary a limiting construction?