(Tick, Tick, Tick, Tick) Wake Up! The Clock's Running on Evidence Retention

The Jan. 15, 2010, opinion of Judge Shira Scheindlin in Pension Committee of the University of Montreal Pension Plan et al., v. Banc of America Securities, LLC (Pension Committee) is potentially the most significant e-discovery decision affecting counsel and litigants in six years.

Prior decisions, such as those of Judge Scheindlin in Zubulake v. UBS Warburg and Judge Barbara Major in Qualcomm Inc. v. Broadcom Corp., have made clear that inside counsel's conduct in supervising e-discovery, interfacing with outside counsel, and assuring internal corporate compliance with discovery obligations is potentially subject to judicial review. Yet those decisions did not address all of the applicable standards and obligations relating to the electronic discovery process.

In Pension Committee, Judge Scheindlin does exactly that, and, while ostensibly merely synthesizing existing standards "set by years of judicial decisions," appears, in fact, to increase compliance requirements and increase the risk of noncompliance by applying enhanced sanctions for gross negligence and willfulness to discovery misconduct.

The detailed decision is a must read for those involved in litigation as it is likely to be persuasive to other courts because of Judge Scheindlin's reputation. It is of particular significance for in-house counsel, as many of the litigation-related obligations it imposes arise prior to the retention of outside litigators and the penalties for noncompliance could be particularly harsh.

To Continue Reading: Click Here
---------------------------------------------
Source: law.com
By: Wayne Matus & David Stanton