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In a recent decision, Chin v. The Port Authority, 685 F.3d 135 (2d Cir. 2012), a panel of the U.S. Court of Appeals for the Second Circuit expressly rejected a bright-line test that deemed the failure to issue a litigation hold memoranda gross negligence and that arguably mandated the issuance of an adverse jury instruction in such instances for lost or destroyed evidence. Id. at 161-62. On an immediate level, the Chin decision resets the standard for conduct of litigants in the Second Circuit with respect to the preservation of documents and data in litigation. More broadly, however, Chin may reflect a rising level of appellate skepticism about the creation and issuance of hard-and-fast, prospective rules for litigants in the area of e-discovery separated from the facts of individual cases. The implications and the impact of the Chin decision are analyzed and discussed below.

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