Anyone not living in a cave for the last two months has heard of Judge Scheindlin's most recent foray into the world of e-discovery, with her 87-page decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities LLC, Civil Action No. 05-9016-SAS (S.D.N.Y. Jan. 15, 2010), subtitled as Zubulake Revisted: Six Years Later.
I'm not going to summarize all 87 pages of the decision, but it's certainly something any practitioner involved in major litigation where e-discovery is an issue will want to peruse. What's most interesting (and potentially frightening) about the decision was that unlike most reported e-discovery cases involving sanctions, where there was intentional, fairly egregious conduct on the part of the parties or lawyers, this one really didn't involve that. In fact, plaintiffs' counsel had instructed their client to preserve relevant documents four months before filing suit. But what the judge found deficient was not the lack of any effort to preserve documents, but the level of attention given to the preservation process. Among other things, the judge faulted the plaintiffs for failing to send out litigation hold letters soon enough.
The opinion sets up a roadmap for handling e-discovery issues, with a sliding scale of varying sanctions based on a continuum of fault ranging from negligence to gross negligence to willful conduct. Judge Scheindlin even included the text of what she deemed to be an appropriate spoliation charge in the decision.
What all of this means for lawyers and parties in major litigation is more bickering and fighting about discovery demands, complaints by one side or the other during discovery about the minute details of how documents were preserved and searched for and explanations for any of the inevitable gaps in documents, an increased risk of sanctions, and yet more cynicism that litigation can be turned into a fight over the process more than the merits of a case. no doubt this will further fuel the talk of many commentators (such as those previously reported about here and here) for finding ways to pull in electronic discovery. But whether those efforts actually lead anywhere will be another story.
Reposted from:http://www.maineevidence.com/2010/03/judge-scheindlins-latest-primer-on-ediscovery.html