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Since 2010, Pension Committee v. Banc of America Securities  has been a premier decision on the availability of adverse inference sanctions where a party fails to issue a litigation hold. U.S. District Judge Shira A. Scheindlin held that a party’s failure to institute a written hold was “gross negligence” per se, permitting a presumption that relevant and prejudicial documents were destroyed and triggering the dreaded adverse inference against the erring party. Recognizing Judge Scheindlin’s expertise and reputation in e-discovery, extending from her multiple decisions in the famous Zubulake v. Warburg cases through her five opinions in National Day Laborer Organization Network v. Immigration and Customs Enforcement, which applied e-discovery standards to FOIA requests, Pension Committee became the benchmark on litigation hold sanctions. According to a recent Westlaw search, courts have cited it in 91 cases, with only two directly criticizing its holding.

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