Last time, we reviewed Judge Shira Scheindlin’s must-read decision in Pension Committee,1 in which she suggests that her series of Zubulake decisions (the last of which was issued in 2004) imposed a range of categorical e-discovery duties in the Southern District of New York and quite possibly beyond. Her Pension Committee decision warns that the breach of these post-Zubulake duties will almost invariably constitute “gross negligence” and subject litigants to the most severe of discovery sanctions.
But a recent decision by Judge Lee H. Rosenthal of the Southern District of Texas—another luminary in the constellation of judges shaping the law of e-discovery—highlights that e-discovery standards remain unsettled and defy application of immutable and inflexible rules. Indeed, Judge Rosenthal’s opinion in Rimkus Consulting v. Cammarata2 notes that circuit splits have emerged on some fundamental e-discovery concepts.
