Tuesday, December 1, 2015

How Do The New Federal Rules Of Civil Procedure Affect Your Copyright Case?

Most of you probably don't know or care much about the Federal Rules of Civil Procedure.  Unless, of course, you are a lawyer.  Like me.  Well I'm going to tell you about them anyway because if you landed on this site by searching the Internet, there are some things about the Rules you just might need to know. 

The Federal Rules of Civil Procedure are really just a bunch of rules that control how litigation proceeds in Federal Court.  Specifically, the Rules govern things like what can the other side make you turn over to them and when.  The Rules also include a whole lot of guidance on when things have to get done and how.  Bottom line, if you are in Federal Litigation and you are wondering if you can do something you want to do or how do you do it, then the Rules probably answer your question.

I'm mentioning them today because there were some recent changes to those rules that just went into effect today.  Most of the changes are very minor, but some have the potential to be very favorable.  The one that is getting the most headlines today is the one that does away with so-called form complaints.  The reason for that, most commentators say, is because it's supposed to make it harder to file a patent infringement complaint.  But the reason for that is because one of the form complaints that is being eliminated was for patent infringement and it was pretty bare bones.  But no one has really used that form anyway since Iqbal and Twombly so I don't see this change affecting anything at all, not really.

But there are a couple of other changes that might prove more interesting.  For instance, one area of substantive change in the new Rules surrounds e-discovery -- basically the ability to make a party turn over electronically stored documents.  In the past, the Rules have been very sparse on e-discovery and didn't really have much about it.  But the rules-makers have decided they need to beef that part up a bit.  Specifically, Rule 37 has been amended to make it more clear that a party has an affirmative duty to take reasonable steps to preserve electronic evidence.  This was always the law generally, but an express duty to preserve evidence has never been in the Rules themselves, only in the case law.  So the change to Rule 37 actually marks a pretty major departure from where the law was before.

And why is that?  Here's why.  Because the duty to preserve evidence before was an amorphous blob of cases and commentary and locker-room speak that was very difficult to pin down.  Spoliation -- the term used to describe a failure to preserve evidence --  has to my knowledge never been very clearly defined.  When did the duty arise?  What constituted a breach?  And most importantly, what is the punishment for spoliation?

What exactly constitutes spoliation is still very murky.  But at least the rules-makers have now created some clarity around what punishments can befall someone who has caused evidence to be lost.

Bottom line, once you have notice that you might be sued, then you have an affirmative duty to take "reasonable steps" (whatever those are) to ensure that evidence does not get destroyed.  In the context of electronic evidence, that means you have to make sure files don't get erased or deleted, basically.

But we all know that sometimes stuff just happens.  So what if some electronic evidence does get erased on your watch?  What then?  Well, the rules-makers say first it depends on whether you took those reasonable steps to preserve the evidence.  Did you back up the files?  Did you turn off an auto-clean function that keeps your hard drive nice and tidy?  If so, and something unpredictable happened (your hard drive crashed an hour after getting your first notice of a dispute, say), then there is no punishment.  It's just life.  Again, sometimes stuff just happens.

But what if you didn't take any steps to preserve the evidence?  If your answer is "I knew my hard drive automatically wipes all my deleted files once a week and I just didn't turn that off."  Well, then you might have problems.  In fact, you probably do have problems.

New Rule 37 says that the severity of your punishment depends on two things: First, how bad is the prejudice to the other side.  Second, how culpable are you for the destruction of the evidence.

First, the judge is only allowed to punish you to a degree that is commensurate with the prejudice.  In other words, if the other side isn't all that harmed without the evidence, then you aren't going to be punished too bad.  Maybe you get a $100 sanction or something. It could be worse. If you accidentally deleted an email, but it was stored on some other cloud storage anyway, then there is no harm.  Prejudice eliminated.

But if the other side is very prejudiced, then it could get worse.  Maybe the evidence that got deleted was an admission of liability by you.  Way worse prejudice; way worse punishment.  Keep reading.

Second, how bad can it get?  In the past, the ultimate sanction was an actual dismissal of your claim if you were a plaintiff, or a finding of liability if you were a defendant.  In other words, the litigation equivalent of complete defeat.  In the past, that ultimate sanction sometimes took the form of a so-called negative inference or a negative instruction. Legalese for "you lose."

In the past, what you had to do to get the ultimate sanction was very unclear.  It differed from district to district.  Lawyers trying to exploit technicalities always used the loose standard to threaten the ultimate sanction over the most trivial of circumstances.  

But as of today, there is some guidance.  Bottom line, in order for a judge to punish you with the ultimate sanction, the judge must find that you "acted with the intent to deprive [the other] party of the information’s use in the litigation."  In other words, bad faith.  If you knew about a particular piece of evidence, and you knew that particular piece of evidence would be very bad for you, so you either destroyed it or allowed it to be destroyed, then the hammer is likely to come down.  Expect very bad things.  Expect the ultimate sanction.

But, if you didn't know that there was a critical email in your inbox, but you also failed to make a back up copy of your inbox before your computer crashed three months into litigation, then you likely aren't going to get the ultimate sanction.  You'll probably get punished, but likely not with the ultimate sanction.  At least not unless the true facts reveal that you did know about that email, or you did know your computer was about to crash and did nothing about it.  Then it becomes less clear.

Why is this important to people reading this blog?  Here's why.

The typical plaintiff in a bittorrent copyright case usually makes these two arguments:
The defendant downloaded my movie illegally and it's on his hard drive.
But if it's not on his hard drive, then he must have deleted it and spoliated the evidence.
So the plaintiff argues that if it's there, you did it.  And if it's not there, you spoliated it so you should get the ultimate sanction.  In other words, either way you did it.  This is the threat that forces some people to try and settle a case that they otherwise shouldn't.  It's the proverbial need to "prove a negative." 

This new Rule 37 should provide a lot more security against plaintiffs unfairly threatening you with the ultimate sanction just because the file they say was downloaded doesn't exist on your hard drive.  First of all, if you didn't do it then it shouldn't show up anyway.  Second of all, if something did happen to your hard drive then it is now (as of today, officially) the plaintiff's burden to show that you actually caused that to happen for the purpose of an advantage in litigation.

I'm not saying that doesn't happen.  I'm sure it does.  But I am saying that the days of the ever-present threat of the ultimate sanction for minor, unintentional mistakes are over.

This does not mean go out and wipe your hard drive as soon as you get a notice from Comcast of a suit.  In fact this means the opposite of that.  If you did what you are accused of doing, and you did download the movie with bittorrent, then you better push forward with a different defense than "I didn't do it."  There are several pretty good "I did it, but . . ." defenses.  Pick one of those.  But don't delete the movie and pretend you didn't do it.  You will get caught, and you will get punished.

But if you are innocent and you just didn't know anything about the fact that your college-aged kid set up your computer to auto-defrag the hard drive once a month, then you should not be too worried.

Sorry this post is so long.  I got carried away.  Spoliation is, at bottom, a pretty easy concept.  But sometimes it just takes lots of words to explain the easy ones.

A redline version of the new Rules is embedded below, for those of you who just like to dig in to the details.