Retired Judge Scheindlin Answers Everything
Monday, February 27, 2017
Posted by: Mary Mack
The Honorable Shira Scheindlin (retired) is not resting on her laurels. She answered many questions during her Reddit AMA, most of which were focused on criminal law, or cases with social impact.
Regarding ediscovery, the new amendments and the Zubulake cases:
Yes, Zubulake has certainly been a landmark opinion and is still influential today. I am not really surprised. At the time I wrote it there was a great need for guidance and I wrote the series of opinions with that in mind. I think we have had enough discovery reform for now and need a rest. I opposed the recent amendment to Rule 26 because I think the standard should always be relevance. Adding proportionality is an open ticket for closing down discovery when a judge thinks little of the case. That level of discretion, I fear, will be used more against meritorious plaintiffs' suits than otherwise.
Regarding being required to unlock a cell phone:
I don't think folks should ever be compelled to unlock their cellphones - certainly not in the absence of a warrant. The Supreme Court has spoken on this issue is Riley which addressed the search of a cellphone incident to an arrest and did not permit the search.
Regarding border searches of cell phones:
As for returning to the U.S. that might be a border search depending on your status in this country. A citizen should have the same rights as she has within the country but a non-citizen might not have the same rights.
Regarding preservation of Signal/Snapchat:
1. When there is no duty to preserve, ESI need not be preserved. So at the time of using Signal/Snapchat -- if there was no duty to preserve then no harm done. But if there is a duty to preserve then using this form of communication is essentially the destruction of evidence. 2. An attorney should be sure her client understands the duty to preserve once it attaches and must realize that instant deletion does not conform to the duty to prewerve (sic).
Regarding morality and enforcing the law:
Judge Scheindlin answered one question about the morality and law by stating, “I have thought long and hard about the ‘moral requirement to not enforce the law’ but that is contrary to our oath of office. If I refuse to enforce the law I violate my oath and it is better to resign than violate the oath. The comparison is often made to judges during the Nazi era. Those with a moral compass resigned and refused to commit an immoral act. That is my stance. I resigned, in part, because I was tired of imposing many unjust sentences.”
Judge Scheindlin’s AMA is here
Read Stroock & Stroock & Lavan LLP's article about Judge Scheindlin here
Read Judge Scheindlin's bio by JAMS here