Litigation

Judge Scheindlin Issues 85-page Opinion On E-Discovery Entitled 'Zubulake Revisited: Six Years Later'

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The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al.
 
Kevin Brady, a nationally-recognized expert in electronic discovery, prepared this short overview.
 
For those who follow the case law dealing with electronic discovery, there is a new a “must-read” decision that was just issued. On January 15, 2010, Judge Shira Scheindlin, author of the landmark series of e-discovery opinions in Zubulake v. UBS Warburg, issued an 85-page amended opinion in the case of The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al. (“Pension Committee”) (the original opinion was issued on January 11, 2010.). Judge Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later.”
 
The case looks at preservation and spoliation from the perspective of the plaintiff and the issue had to do with information that should have been preserved by the plaintiffs after the lawsuit was filed but was not. Judge Scheindlin addresses in great detail, ways to define the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context, identifying the following “failures” and levels of culpability as examples:
 
• The failure to issue a written litigation hold (gross negligence).
• The failure to collect information from key players (gross negligence or willfulness).
• The destruction of email or backup tapes after the duty to preserve has attached (gross negligence or willfulness).
• The failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players (negligence).
• The failure to take all appropriate measures to preserve ESI (negligence).
• The failure to collect information from the files of former employees that remain in a party's possession, custody, or control after the duty to preserve has attached (gross negligence).
• The failure to assess the accuracy and validity of selected search terms (negligence).
 
Judge Scheindlin also discusses who should bear the burden of establishing the relevance of evidence that is lost and who should be required to prove that the absence of the missing material has caused prejudice to the innocent party. Judge Scheindlin also suggests a novel burden-shifting test in dealing with burden of proof and severity of the sanction requested. Finally, Judge Scheindlin provides guidance on the important issue of preservation of backup tapes.
 
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