Over the past decade, the law governing litigants' obligations to preserve and collect electronic discovery materials has developed substantially. Much of this development was spearheaded by a series of leading decisions issued by federal district court Judge Shira A. Scheindlin in a long-running litigation known as Zubulake.[FOOTNOTE 1] Recently, Scheindlin -- in a new ruling that she entitled "Zubulake Revisited: Six Years Later" -- held that many of the document preservation and collection obligations that were first recognized in Zubulake and its progeny by now had become so well established that litigants' failure to comply with them warranted severe sanctions, both monetary and substantive. Her ruling, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. Jan. 11, 2010), sounds yet another wake-up call to litigants about the seriousness and alacrity with which they must address document preservation and collection once litigation reasonably can be anticipated. Pension Committee involved 13 plaintiffs, all of whom were found to be negligent in meeting their e-discovery obligations so as to cause relevant documents to be lost or destroyed. Monetary sanctions were imposed on all 13 of these plaintiffs. In addition, Scheindlin also found six of these plaintiffs to have been not just negligent but grossly negligent, with the result that these six plaintiffs were additionally subjected to an "adverse inference instruction," under which the jury will be told to presume that the destroyed documents would have harmed the plaintiffs' case had they been available. As Scheindlin earlier stated in Zubulake IV, "an adverse inference instruction often ends litigation -- it is too difficult a hurdle for the spoliator to overcome."[FOOTNOTE 2] Scheindlin acknowledged that giving an adverse inference instruction was a severe sanction, but she concluded it was nevertheless warranted in this case because these six plaintiffs' failures to comply with their Zubulake obligations were so pervasive as to amount to gross negligence. While determining whether particular parties' e-discovery failures were the product of ordinary negligence or gross negligence is ultimately a "judgment call" that "cannot be measured with exactitude and might be called differently by a different judge," Scheindlin asserted that "[a]fter a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence," thus warranting imposition of the adverse inference instruction as a sanction. To Continue Reading: Click Here ----------------------------------------------- Source: law.com By Robert Schwinger and Marcelo Blackburn

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