Judge’s Latest E-Discovery Ruling Is ‘Wake-up Call to Litigants’
U.S. District Judge Schira Scheindlin is well known for a series of rulings six years ago that established what kind of electronic evidence is discoverable and how the costs should be apportioned.
Now the New York federal judge has written a new opinion (PDF) that says the duty to preserve documents is so well-recognized that failure to comply merits severe sanctions, Chadbourne & Parke’s Robert Schwinger and Marcelo Blackburn write in a column for Law.com.
The decision serves as a “wake-up call to litigants about the seriousness and alacrity with which they must address document preservation and collection,” the lawyers say.
Corporate Counsel says while the opinion was issued in early January, it is likely to be one of the most important of the entire year.
Scheindlin called her ruling “Zubulake Revisited: Six Years Later,” after the name associated with her first series of rulings in 2004. The new decision imposes monetary penalties on 13 plaintiffs for negligence that allowed relevant electronic documents to be lost or destroyed. The decision also found that six of the plaintiffs were grossly negligent, meriting an “adverse inference” instruction to jurors that says the missing documents should be presumed to have harmed the plaintiffs’ case.
In the introduction to her opinion, Scheindlin wrote, “By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records—paper or electronic—and to search in the right places for those records, will inevitably result in the spoliation of evidence,” she wrote in the introduction.
According to the stories, Scheindlin said these failings are evidence of gross negligence:
• Failure to issue a “litigation hold” on documents when there is a duty to preserve.
• Failure to identify the key players and make sure their records are preserved.
• Failure to stop the deletion of e-mail and failure to preserve backup tapes that are the only source of relevant information.
• Failure to supervise document preparation efforts.
According to the Law.com piece, “Active and specific supervision, including supervision by counsel, is critical to doing the job that courts expect of litigants in disputes today.”
Also see:
ABA Journal: “Rockin’ Out the E-Law”
