Zubulake Revisited: Six Years Later

A recent case out of the Southern District of New York sheds additional light on the issue of defining negligence, gross negligence, and willfulness in the e-discovery context, and gives insight into what types of conduct fall in each of those categories.  In a lengthy 87-page opinion entitled Zubulake Revisited: Six Years Later (Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010)), Judge Shira A. Scheindlin, the author of the original line of Zubulake opinions, walked through a step-by-step analysis of the relevant law.  Some key points:

• Failure to issue a timely written litigation hold constitutes gross negligence due to the likelihood that relevant documents will be destroyed.
• “[T]he failure to collect records – either paper or electronic – from key players constitutes gross negligence or willfulness as does the destruction of email or backup tapes after the duty to preserve has attached.”  By contrast, a mere failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes simple negligence.
• The relevance and prejudice of destroyed materials can be presumed where the spoliating party acted with gross negligence.
• Appropriate sanctions for breaches of discovery obligations should “(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position [it] would have been in absent the wrongful destruction of evidence by the opposing party.”

Judge Scheindlin’s thorough review of the Zubulake standards should be required reading for any attorney involved in e-discovery related matters.