“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion

Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (Amended Order)

Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan v. Bank of Am. Secs., LLC, addresses the issues of parties’ preservation obligations and spoliation in great detail, including detailed and informative discussions of the varying levels of culpability in failing to uphold discovery obligations, the required burdens of proof, and the appropriate remedies upon a finding of spoliation.

The opinion was summed up by Judge Scheindlin in the introduction to her opinion:

By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence.

The court specifically identified several actions (or failures to act) which would result in a finding of gross negligence in upholding discovery obligations:

Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached:  to issue a written litigation hold; to identify all of the key players and to ensure that their electronic and paper records are preserved; to cease the deletion of email or to preserve the records of former employees that are in a party’s possession, custody, or control; and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.

Following its lengthy discussion of the facts and findings, the court concluded that:

While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.

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