e-Discovery Update – Zubulake Revisited
By Six years after the series of Zubulake decisions which established ground rules for preserving electronic discovery and also regarding how to allocate the costs of producing electronically stored information, the Southern District of New York has issued a new opinion about the duty to preserve electronic evidence.
Judge Schira Scheindlin, who authored the Zubulake decisions, chided the parties for failing to learn the lessons about how important it is to preserve paper and electronic records when litigation is reasonably expected. The Court said:
As famously noted, “[t]hose who cannot remember the past are condemned to repeat it.” By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records — paper or electronic — and to search in the right places for those records, will inevitably result in the spoliation of evidence.
For failing to properly preserve evidence, the Court imposed sanctions against 13 plaintiffs. The sanctions included monetary penalties and, in some instances, an adverse inference jury instruction. In reaching its ruling, the Court defined negligence, gross negligence and willfulness in the discovery context; and also discussed the burden of proof regarding whether sanctions were appropriate.
Of the 13 plaintiffs who were sanctioned, the Court found that 6 of them had committed gross negligence. The behavior found to constitute gross negligence included failing to institute a timely litigation hold, failing to preserve any electronic evidence, continuing to delete records after the duty to preserve arose, delegating search responsibilities without any management, and destroying back-ups that contained potentially responsive materials.
This case is described in greater detail in an article by Robert Schwinger and Marcelo Blackburn.
It is worth noting that different courts are still taking different approaches to electronic discovery. At least in the Middle District of Tennessee, there is a standing administrative order that provides a default mechanism for the retention and exchange of electronically stored information. The order states that “[t]he court expects the parties to cooperatively reach agreement on how to conduct e-discovery.” In the event the parties have not reached an agreement by the initial case management conference, the order requires a set of default rules. This mechanism is designed to bring e-discovery conflicts to a head at the front end of a case.
Related content
- Mr. Smith Goes to Cincinnati and Loses an Appeal Before the Sixth Circuit for Failure to Cooperate in Discovery
- Discoverability of Secretly Recorded Conversations
- Service of Process: You Must Actually Serve the Defendant
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