Zubulake Revisited: Pension Committee and the Duty to PreserveBy John M. Barkett – February 26, 2010
In 2004, the Honorable Shira Scheindlin shook up the trial bar with the first of a series of e-discovery opinions addressing cost shifting, the prelitigation duty to preserve, preservation of backup tapes, identification of key players, and sanctions. Six years later, she has issued another blockbuster opinion addressing culpability standards associated with a violation of the duty to preserve, defining certain failures to act as grossly negligent or negligent, determining the burden of proof to obtain sanctions for breach of the duty to preserve, and identifying evidentiary presumptions and whether they are rebuttable. Entitled The Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities, LLC et al., ___ F.R.D. ___, 2010 WL 184312 (S.D.N.Y. 2010), the case is sure to generate as much debate as the Zubulake decisions have generated.
There are many lessons that lawyers must take from Pension Committee, not the least of which is that the opinion magnifies the differences in the circuits on the appropriate standard courts are to follow when they exercise inherent authority. But first, I follow the outline of the opinion discussing the background of the case, the analytic framework, the conduct of the sanctioned plaintiffs, and the court’s remedy. I then provide an analysis of what the post-Pension Committee litigation world will look like.
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Note: Judge Scheindlin and article author John Barkett will be panelists at the upcoming 4th Annual National Institute on E-Discovery, May 27, 2010, in Washington, D.C.
Key words: Litigation, e-discovery
John M. Barkett is with Shook, Hardy & Bacon LLP in Miami, Florida.
- » Pension Committee and the New Standards for E-Discovery Shortfalls, L. Sestile, Litigation News Online (Mar. 3, 2010).
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