Kyle C. Bisceglie On Zubulake Revisited: 6 Years Later - Pension Committee And The Duty To Preserve In 2010 And Beyond

Six years after her pivotal Zubulake decisions [enhanced version available to subscribers], U.S. Judge Shira A. Scheindlin of the Southern District of New York revisits e-discovery issues and reinforces the importance of the duty to preserve. Kyle C. Bisceglie, a partner at Olshan Grundman Frome Rosenzweig & Wolosky LLP in New York and author of the LexisNexis Practice Guide New York E-Discovery and Evidence, analyzes the impact of this decision and offers some suggestions for practitioners to ensure that they avoid the pitfalls that ensnared the plaintiffs.

Judge Scheindlin issued another important, thorough and widely discussed e-discovery opinion on Jan. 11, 2010, amended and revised on Jan. 15, 2010, and May 28, 2010: Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., 685 F. Supp. 2d 456 (S.D. N.Y. January 15, 2010) [enhanced version].

"Therein she teaches us again that failure to comply with the duty to preserve and the resulting loss of evidence can have a dramatic impact on litigation," Mr. Bisceglie writes. "Significantly, the court found inter alia that, even without bad faith, the failure to issue a written litigation hold, preserve the documents of key players or preserve unique information on back-up tapes constitutes sanctionable gross negligence when evidence is lost. . . .

"The January 15th amended opinion clarified ten or eleven points in the original decision, most notably with regard to backup tapes. Specifically, the court revised language and added footnote no. 99 to make clear that failure to preserve backup tapes constitutes gross negligence only if the backup tapes are the only source of relevant data from key players.

"On May 28, 2010, the court revised a single sentence that had engendered some confusion, but fairly read in context of the entire decision does not change the implications of this case, prior Zubulake decisions or discovery obligations."

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