Closing The Loop

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

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.

Altering pesca-data? 

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 'en­sure beyond question' that e-mails and other electronic files fall within §1519’s compass. . . Would a judge or jury member predictably find that 'tangible object' encompasses something as virtual as e-mail (as compared, say, with something as real as a fish)? If not (and the answer is not), then that term cannot function as a failsafe for e-mails.”

The Supreme Court’s ruling in Yates shows that the particulars of the law are largely in the eye of the beholder, signaling hope that the interpreters of the forthcoming discovery amendments will apply their spirit — irrespective of what the letters says.

The amendments, especially to FRCP 26(b)(1) — which was changed with the intent of making the concept of proportionality central to determining the scope of discovery — are meant to pull us back from the current self-destructive habit of massive over-demand of ESI. (See Ralph Losey’s coverage of the amendments for the easiest reading).

It's encouraging that the highest court set aside prevailing wisdom and literal interpretations in pursuit of a more just outcome. Perhaps we can surmise that the court found that justice required that Captain Yates, like his fish, was small enough to qualify for catch and release. Hopefully the district court judges and magistrates, when they examine the new rules, will likewise apply them first and foremost with justice in mind -- and kelp heap help keep the absurd burdens of eDiscovery at bay.

New Call-to-action

Subscribe To Our Blog

New Call-to-action

Let us know what you thought about this post.

Put your comment below.