Industry Update on Legal Holds

The e-discovery blogs and tweets in the last few weeks have brought the discussion of legal holds and e-discovery back into the forefront. Here is a quick overview of some of the highlights:

Judge Scheindlin of Zubulake Issues “Amended” Comprehensive Legal Hold Opinion

The Judge that brought us the now famous Zubulake series of legal hold decisions has weighed in on the state of litigation holds in the United States.  Her latest decision considers facts over a period of time from pre-Zubulake through the present.  In a lengthy and well researched opinion (including 251 footnotes) the Judge carefully analyzes the state of legal hold law in the United States (a footnote suggests the Judge and two law clerks spent over 300 hours researching and writing the opinion). Since issuing the Opinion on January 11, 2010, the Judge amended it on January 15, 2010.  Why?  I suspect some friends in the e-discovery world gave the Judge an earful on her position that backup tapes of key players must be preserved to avoid spoliation sanctions.  Words to this effect appeared twice in the Opinion.  The amendment removed this overreaching requirement.  (continue reading)

Raising the Bar – Judge Scheindlin Defines Gross Negligence in Spoliation

Pension Committee provides a thoughtful analysis of the whole field of ESI spoliation and sanctions, especially on the issues of evaluation of levels of culpability and burden of proof. This is a scholarly opinion with citations from around the country. It is not only written in the compelling, erudite manner we have come to expect from Judge Scheindlin, but fills in several gaps in the law of spoliation. (continue reading)

e-Discovery Traps (and Significant Sanctions) for the Unwary

The plaintiffs in the case failed to issue litigation hold notices until 2007, even though the litigation commenced in February 2004. The sanctions were significant:

• attorney’s fees and costs incurred by the defendants in bringing their motion,
• costs of discovery relating to uncovering the facts of the wrongdoing, and
• a jury instruction highlighting certain of the plaintiffs’ gross negligence in complying with discovery and explaining how the jury can conclude that an adverse inference should be drawn against those plaintiffs.