Editor’s note: Michael Simon is a former trial lawyer who has spent the last 15 years consulting on electronic evidence issues. He teaches Discovery Law and Practice at Boston University Law School and is a frequent contributor to legal publications, including Above The Law and The eDiscovery Journal. He can be reached at firstname.lastname@example.org.
Practitioners and businesses have waited a long time for the new electronic discovery amendments to the Federal Rules that are due to take effect near the end of this year. Gibson Dunn’s 2015 mid-year update best describes just how long we have been waiting:
“. . . there's a scene in the film Monty Python and the Holy Grail in which Sir Lancelot is seen charging across a field to attack a castle. The camera pans back and forth between two guards posted at the front of the castle and Lancelot, who each time is still where he started, endlessly charging forward but getting nowhere.”
Actually, for the record, in the scene Lancelot appears to be going backwards, which some might say is an even more apt analogy for the amendments process. Some commentators have written that the new rules will save us all. I am not among them. I've taken a much more cynical view, along with others, that the amendments won't really change anything.
But recent events give cause for hope. Consider the High Court’s roe row over fish.
In a case that most missed, the US Supreme Court held that fish are not “tangible objects” under § 1519 of the Sarbanes-Oxley Act, which provides criminal sanctions against anyone involved in a federal investigation who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.”
Yes, that’s right: the US Supreme Court held that you can’t spoliate a fish. Top that, Monty Python.
In Yates v. United States, 135 S. Ct. 1074 (U.S. Feb. 25, 2015), Captain John Yates, of the fishing ship Miss Katie, was busted in the Gulf of Mexico for catching and keeping slightly undersized red grouper. The arresting federal agent ordered Captain Yates to keep the now-tagged undersized fish as evidence. Captain Yates was met at port three days later by the same fishing agent, who discovered that Yates replaced the undersized grouper, which he tossed overboard, with ones that were still undersized — just not by quite as much (why he didn’t replace them with regulation sized ones isn’t relevant, but worth pondering).
Yates was found guilty in federal court of violating the Sarbanes-Oxley Act by dumping the fish, and sentenced to 30 days in jail. The Eleventh Circuit denied Yates’ appeal, finding that fish were obviously “tangible objects.”
The Supreme Court reversed.
Despite the seemingly rather small scale of the decision – particularly in a docket that included high-profile decisions on Obamacare and same-sex marriage – the court devoted much time to examining the language and history of §1519. In a holding that left the minority pouting and battered incredulous, a plurality of justices (in a 4 justice opinion and single concurrence) found that the term “tangible object” in the statute was vague.
“§1519, we conclude, is better read to cover only objects one can use to record or preserve information, not all objects in the physical world,” the court reasoned, letting Captain Yates go free.
So what does this all have to do with electronic discovery? Well, as the dissent pointed out, if real, physical objects such as fish are not a “tangible object” under §1519, then intangible objects -- such as email -- might not be covered under the statute either. The dissent wrote:
“The concurrence suggests that the term 'tangible object' serves not as a catchall for physical evidence but to 'en