Over the past decade, the law governing litigants’ obligations to preserve and collect electronic discovery materials has developed substantially. Much of this development was spearheaded by a series of leading decisions issued by federal district court Judge Shira A. Scheindlin in a long-running litigation known as Zubulake.[FOOTNOTE 1] Recently, Scheindlin — in a new ruling that she entitled “Zubulake Revisited: Six Years Later” — held that many of the document preservation and collection obligations that were first recognized in Zubulake and its progeny by now had become so well established that litigants’ failure to comply with them warranted severe sanctions, both monetary and substantive. Her ruling, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. Jan. 11, 2010), sounds yet another wake-up call to litigants about the seriousness and alacrity with which they must address document preservation and collection once litigation reasonably can be anticipated.
Pension Committee involved 13 plaintiffs, all of whom were found to be negligent in meeting their e-discovery obligations so as to cause relevant documents to be lost or destroyed. Monetary sanctions were imposed on all 13 of these plaintiffs.
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