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Since its inception, the rule forged by Judge Shira Scheindlin in the Zubulake v. UBS Warburg and Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities decisions—that the failure to implement a written litigation hold is gross negligence per se—has been the “gold standard” in e-discovery. However, in light of recent case law departures from Zubulake, that standard might be changing in 2013 and beyond.

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