Influencia del NE en el desarrollo de la teoría del Estado

In the preceding chapters I examined the events precipitating the 2006 rule changes, as well as post-change cases interpreting those changes. In the beginning of this chapter I noted the bulk of opinions concerning discovery practices are promulgated by Magistrate and District Court opinions. The dearth of case law emanating from appellate decisions is counterintuitive for a common law system where precedent tends to flow from above to harmonize practices below. This might come about because discovery is a procedural issue rather than a substantive one, and, as echoed in many of the discussed cases, falls within the court’s inherent authority to manage its affairs.

Intuitively, it seems there must be contours to the courts’ inherent authority in this context – certainly it would be dysfunctional if every court arbitrarily decreed their interpretation of discovery obligations on a whim, but at the same time too much interference from higher courts too far removed from the discovery process would prove stiffing to the lower courts’ flexibility. The answer may lie with the nature of the rules themselves – namely that the Federal Rules of Civil Procedure, which governs discovery, is a Code. Serendipitously, being native to Louisiana and studying both civil and common law with a heavy emphasis on international and comparative law gives me certain insights to the approaches in both systems. Louisiana, in particular, is unique given its position as the sole Civil Law jurisdiction among its 49 Common Law sister states in a Federal system based on Common Law.

If we assume the FRCP, at least with respect to discovery, is being interpreted as codes are in Civilian legal systems, then how Louisiana interprets law should be informative. To that end, there are three cases of interest. The first, Ardoin v. Hartford Acc. & Indem. Co., is a well known case from the Louisiana Supreme Court in which Justice Dennis explicitly corrected a trend of Louisiana courts to adopt methods of interpretation from the Common Law. In the decision, the Louisiana Supreme Court explicitly affirms the nature of case law as a secondary source rather than primary – in effect, under the Civilian system case law has, theoretically, no more precedent than a treatise.

In deciding the issue before us the lower courts did not follow the process of referring first to the code and other legislative sources but treated language from a judicial opinion as the primary source of law. This is an indication that the position of the decided case as an illustration of past

experience and the theory of the individualization of decision have not been properly understood by our jurists in many instances. Therefore, it is important that we plainly state that, particularly in the changing field of delictual responsibility, the notion of Stare decisis, derived as it is from the common law, should not be thought controlling in this state.6 The case law is invaluable as previous interpretation of the broad standard of Article 2315, but it is nevertheless secondary information. 1

The Louisiana treatment of judicial decisions as merely secondary to the primary authority of, inter alia,

codes is unique in the United States. There are disputes as to whether this treatment is pure in practice, but at least conceptually Civilian methodologies are the rule. The second and third cases (Songbyrd, Inc. v. Bearsville Records, Inc. and Estate of Albritton v. United States) show examples of the State decision as applied in Federal courts which must apply Louisiana law.

The basis of our jurisdiction, and that of the district court, to decide the instant case is diversity of citizenship, under which a federal court’s obligation is to apply substantive state law. In Louisiana this obligation has special dimensions because of our unique Civilian tradition. We remain ever aware of the late Judge Rubin’s caution to federal Erie courts applying Louisiana Civil law to steer clear of the common law principle of stare decisis and to apply instead the distinctly Civilian doctrine of jurisprudence constante: Because of the reviewing power of [Louisiana] appellate courts, the [Louisiana] trial judge may pay great respect to the decisions of these courts. He is not bound to do so, however, because the doctrine of stare decisis does not apply. Instead, each judge, trial and appellate, may consult the civil code and draw anew from its principles. Interpretation of the code and other sources of law is appropriate for each judge. The judge is guided much more by doctrine, as expounded in legal treatises by legal scholars, than by the decisions of colleagues.... Instead of stare decisis, the rule is one of deference to a series of decisions, jurisprudence constante.7 Emphatically elaborating on the proposition that Erie “does not command blind allegiance to [any] case on all fours with the case before the court,8 ” now- Chief Judge Politz wrote that: If anything, this flexibility is even greater when a federal court sits as a Erie court applying the Louisiana civil law. In such cases, “the Erie obligation is to the [Civil] Code, the ‘solemn expression of legislative will.’ ” Shelp, 333 F.2d at 439 (quoting the very first article of the Louisiana Civil Code). The Louisiana Supreme Court has taken great pains to “plainly state that ... the notion of stare decisis, derived as it is from the common law should not be thought controlling in this state. ” Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d

1331, 1334 (La.1978). While caselaw in the State of Louisiana is acknowledged as “invaluable as previous interpretation ...” [id. at 1335], it is nonetheless properly regarded as “secondary information.” Id. at 1334.92

Erie of course applies with a civilian twist in Louisiana. It is axiomatic in Louisiana that courts must begin every legal analysis by examining the primary sources of law reflected in the positive codal and statutory expressions of legislative will. See,e.g., Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169, 175 (5th Cir.1999). Jurisprudence, even jurisprudence that rises to the level of jurisprudence constante, constitutes only a secondary source of law. Id. On issues not yet squarely addressed by the Supreme Court of Louisiana, the federal court must rely primarily on the history and lineage of code provisions, their construction by commentators, and their place in the statutory framework. Delaune, 143 F.3d at 1002 & n.6; see also Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776-77 (5th Cir.1997); Green v. Walker, 910 F.2d 291, 293-94 (5th Cir.1990). Thus, a federal tax case in Louisiana may well be resolved primarily by reference to early nineteenth century French antecedents to the Louisiana Civil Code of 1825 together with French and Louisiana commentary. See,e.g., Delaune, 143 F.3d at 1002-1005 (the court of appeals resolved the tax issue by conducting an extensive analysis of the Louisiana code article’s Code Napoléon antecedent and relevant scholarly comment). 3

The corresponding concept of the Civilian system to the Common law’sstare decisis isjurisprudence con- stante. Simply put,jurisprudence constanteis, rather than a single precedent setting case, a line of cases with

consistent outcomes. The courts, independently applying Civilian treatment, come to the same conclusion thus indicating a settled or clear point of law. Evenjurisprudence constante, however, is not primary law in

the sense a case decided understare decisis is.

The trial courts have the inherent authority to manage their cases which includes managing discovery. The parts of the Federal Rules of Civil Procedure which govern discovery lay out both general principles and specific procedures. The inherent authority of the trial courts, therefore, must be bound by certain contours defined by these strictures. Combined with the tendency of discovery to be dealt with by magistrates whose decisions are of low binding potential, the discovery system behaves more like a Civilian system than a Common one. There is, however,stare decisisprecedent as demonstrated by the appellate decision in Lee v.

Max International, but, as noted, appellate decisions are rare in this context. This leads me to conclude the forbearance of the appellate courts and their deference to the trial courts and magistrates creates a situation where the certainty of precedent is eschewed in favor of the flexibility necessary in pre-trial discovery to

2_{Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776-77 (5th Cir. 1997)}

handle highly fact specific situations. This is, in the case of ESI, effectively required because the burdens and costs analysis must be conducted in the fact context of the instant case to determine reasonableness.

For these reasons, it is unlikely we will see significant jurisprudence developed at the appellate and supreme court levels regarding discovery limits in the near term. Discovery decisions by lower courts are given significant deference - usually for clear error only - because managing discovery is necessarily discretionary, fact specific, and vital to the district courts’ ability to manage their cases efficiently. Too much precedent by higher courts would make the discovery process rigid, while not enough would make it non-uniform across districts. This may be viewed as a positive thing in that the constant state of change technology exists in does not function well with firm, long lasting decisions reaching into the future where the facts bringing them about are no longer congruous. There is no easy list to follow, but nor is there an antiquated and inflexible shackle ofstare decisisto overcome. Because whether sanctions are imposed and what form they

take is based on numerous factors, the best we can synthesize from the cases are general trends.

We see where minor or localized failures occur, the courts are likely to address them by compelling discovery, and addressing some failures, as they become more serious, with more rigorous forensic analysis. We might sum up this lower level by saying discovery was done wrong or badly, searches were not adequate, or data sources were not included. The sanctions are likely to address the failure by correcting it, and eventually producing what should have been given in the first place.

More serious are situations where pertinent data is lost and not recoverable. In this range we find the Zubulake case and the adverse inference standard. Detecting failures here can be difficult, expensive, and subtle. Because logging information is unlikely to be turned over in normal discovery, spoliation by an isolated actor within the company can easily go undetected. Zubulake itself would have turned out differently had textual references to the missing email not been found.

As will be discussed in Part II, sometimes failures can only be detected by familiarity with underlying systems. If one side submits a request for information to the other, and the only return is a set of documents, how can they be sure the other side’s methods for responding to the request were reasonable and effective? Verification is difficult without access to search system used to fulfill the request, but often individual anomalies can be identified showing that, at least, something is amiss.