Education Law

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 the rule or its scope. 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.

Full post as published by Edjurist on December 11, 2008 (boomark / email).