Author of the Zubulake Opinions Decides New E-Discovery Case, Chiding Those With A "Pure Heart and Empty Head"

Federal district court judge Shira Scheindlin -- who penned five seminal opinions in the case of Zubulake v. UBS Warburg -- has weighed in again on a litigant's duty to preserve electronically stored information (“ESI”) relevant to pending or reasonably foreseeable litigation. She even titled her opinion, "Zubulake Revisited: Six Years Later."

In Pension Committee of University of Montreal Pension Plan v. Banc of American Securities, LLC 05-CIV-9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin sanctioned thirteen plaintiff investors for their failure to preserve ESI.  Along the way, she sketched a general framework for determining how much to blame a litigant for its failure to preserve ESI and what sanctions to impose when a litigant's conduct is blameworthy.

But the opinion will be more than just a warning. If Zubulake's reception is any guide, the analytical framework laid out in Pension Committee will greatly influence judicial thinking about the discovery of ESI.  Practitioners would be wise to be familiar with its contents. 
 

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Wisconsin Supreme Court Hopes to Adopt E-Discovery Rules Later This Term

On January 21, the Wisconsin Supreme Court held a lengthy public hearing and open administrative conference about the Wisconsin Judicial Council's petition for an order amending the state rules of civil procedure to deal explicitly with the discovery of electronically stored information.  E-Discovery fans with roughly 5 hours to spare may view the entire hearing and conference here.  Everyone else may read on to get the executive summary below. 

Three speakers appeared at the public hearing to oppose the Judicial Council's petition.  For the most part, the Council's opponents argued that the Council had not gone far enough to bring the state rules of civil procedure into conformity with the federal rules.  Their sometimes wide-ranging critique focused most centrally on the Council's decision not to propose amendments: (1) requiring that parties meet early in the proceeding to confer about the discovery of electronically stored information, (2) permitting a party who inadvertently discloses information that is privileged or protected as trial preparation material to "claw back" that information by asserting the claim of privilege or protection after the fact, or (3) explicitly relieving a party from the burden of disclosing electronically stored information that is not reasonably accessible because of undue burden or cost.  To a lesser extent, the Council's opponents also criticized the Council for declining to propose the creation of a state rule based on Rule 502 of the Federal Rules of Evidence or a provision explicitly authorizing the circuit court to appoint a special master to handle e-discovery disputes.

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