이메일증거의 인멸과 제재

Spoliation and Sanctions of E-mail Evidence

The system which could make the spoliation of documents sanctionable through disclosure had been simple until electronic mail (email) became the most convenient method of communication. In this system, not only conduct undertaken in willfulness or bad faith, but also negligent conduct had been considered as sufficient rationale for spoliation sanctions in a civil discovery. As opposed to a general sanction, an adverse inference was imposed on a party which was showed to have spoliated a document intentionally. The revolution in telecommunications technology has changed this spoliation and sanction system dramatically as email, which has become the representative means of communication, can be deleted easily for various reasons. The deletion of email is now only a function similar to document editing. However, in regard to civil litigation, deletion as spoilation possesses significant meaning. First of all, it is necessary to have a system capable of preserving email for the sake of reasonably anticipated litigation. Major corporations have taken legal hold in order to install computer systems which can preserve a huge amount of information, produce a sizeable amount of material to a requesting party, and be reviewed by lawyers. A party in possession of a preservation obligation becomes burdened by the cost of such obligation. Secondly, there are various causes for the deletion of e-mail, such as a policy to retain documents, automatic destruction systems, the need for storage space, by accident due to individual habit, intentional deletion without ill intention, and deletion in bad faith, among others. These can be inferred that email deleted intentionally but not for ill intended reasons is on the increase. Therefore, sanctions for negligent reasons have become the main focus in the area of spoliation. Third, it is difficult to demonstrate the rationale behind a party’s intention to delete e-mail. Courts often presume the claim or defense of an injured party according to the relevancy of negligently deleted email. Thus, the burden of proof on the injured party is diminished, while the risk of deleted email falls on the negligent party. Courts must maintain the balance of burden of proof. A decade ago, Judge Shira A. Scheindlin created a precedent in cases referred to as the Zubulake decisions, which was related to the deletion of e-mail which included a trigger date regarding the duty to preserve. The judge, who is referred to as the Godmother of Electronic Discovery, extended her decision not only to adverse inference on the gross negligent conduct of a party, but also to the presumption of prejudice through the Pension Committee and the Sekisui cases. More recently, however, proposals to the Federal Rules of Civil Procedure have been released and are scheduled for approval by the Supreme Court and Congress, and effected in 2015. Rule 37(e) of the proposals is aimed at reducing the costs and burden of preservation for cooperation by establishing a unified standard on spoliation and sanctions for the courts. The standard will state that only when willful or bad faith conduct and substantial prejudice are showed by the injured party should sanctions occur. Otherwise courts will be able to take appropriate measures at their own discretion. This rule is expected to provide a safe harbor for corporations. Judge Scheindlin’s decisions can be considered to be in opposition of the new proposal. Although there is justification for both, I am mainly on the side of Judge Scheindlin in supporting the partial adoption of curative measures.