Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session, E-Discovery Case Law Update. The moderator is Kenneth J. Withers and panelists are Hon. John M. Facciola, Hon. Nan R. Nolan, Hon. Andrew J. Peck, Hon. James M. Rosenbaum (Ret.), Hon. Lee H. Rosenthal, and Hon. Shira A. Scheindlin.
ORDER OF SEATING Rosenbaum, Nolan, Scheindlein, Rosenthal, Peck, Facciola
The biggest 2010 issue is sanctions. Historically, there have not been many sanctions cases. That changed in 2010, but the number of cases where sanctions were actually imposed is still fairly small. Since there is a separate session on sanctions, we won’t discuss in detail for this panel. Sanctions cases often involve issues of preservation. So we will start with preservations.
Preservation of Electronically Stored Information (ESI)
Pension Committee case. Securites law case with 96 plaintiffs, filed in 2004, against a bankrupt hedge fund and its managers. Discovery was stayed for a long time; venue changed to NYC. During the stay, 13 players are alleged to have failed to preserve data or to execute proper search. Seven were found to be negligent. Six were found to be grossly negligent (e.g., no effort whatsoever to collect key ESI, failure to suspend automatic data deletion, and submitting false or misleading statements to the court).
Judge Rosenbaum on Pension Committee: In the 2nd Circuit, you are subject to sanctions for mere negligence in discovery. It’s the only circuit with this standard. The ‘law of e-discovery’ is being formed by district judges and their magistrates (rather than by circuit courts or by legislatures). Lesson: learn to preserve; the obligation to preserve is reciprocal.
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Source: Integreon.com
By: Ron Friedmann
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