'Pension Committee' -- One Year Later

The extent of the duty to preserve documents, and the penalties imposed for failure to do so, are issues that have commanded significant attention in recent years from litigants, counsel, and the courts. Despite widespread interest in achieving greater clarity and predictability, judicial efforts to set bright-line rules that inflexibly impose harsh penalties have met resistance from judges and parties who seek a more nuanced and pragmatic approach to enforcing preservation obligations.

The limits of per se rules in this controversial arena are seen in the lack of support received by a 2010 decision by a leading judicial expert on e-discovery in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). Decided by Judge Shira Scheindlin of the Southern District of New York, author of the seminal Zubulake opinions and one of the most well-respected jurists in the country on e-discovery matters, the February 2010 decision is subtitled "Zubulake Revisited: Six Years Later."

The ruling sets forth several bright lines governing the duty to preserve and, more specifically, when the failure to take specific preservation steps can give rise to sanctions. One of the more controversial aspects of the Pension Committee case is its holding that the failure to issue a written legal hold constitutes per se gross negligence, a ruling that touched off a debate in the e-discovery community not just about the necessity of written legal holds but the application of any per se rules to e-discovery.

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Source: law.com
By: William K. Dodds, Philip N. Yannella and Ben Barnett