Two recent e-discovery decisions, the Jan. 15 decision by U.S. District Judge for the Southern District of New York Shira A. Scheindlin in Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities and the Feb. 19 decision by U.S. District Judge for the Southern District of Texas Lee H. Rosenthal Rimkus Consulting Group Inc. v. Cammarata, focused on the issue of how to gauge the relevance of e-discovery lost by the producing party at the prejudice of that loss to the requesting party when the e-discovery is, by definition, lost and so unknown.

I reviewed the facts in both matters and Pension Committee‘s approach of creating presumptions of relevance and prejudice when the data is lost due to the gross negligence or willfulness of the producing party. This article will analyze Rimkus‘ approach, discuss the strengths and weaknesses of both, and place them in the context of unfolding e-discovery jurisprudence.

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