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. 

Judge Scheindlin begins Pension Committee with some rough definitions, tailored to the discovery context, of three familiar classes of misconduct: negligence, gross negligence, and willfulness. She writes that negligence can result from "a pure heart and an empty head" -- for example, if a litigant acting in good faith fails to collect the records of employees who are peripherally connected to the litigation. A heart somewhat less pure (or perhaps a head more empty) can result in grossly negligent or even willful misconduct. A litigant is at least grossly negligent it fails to collect records from key players in pending or reasonably foreseeable litigation or if it destroys relevant email or certain backup tapes. 

Pension Committee then discusses the sanctions that a court may apply when a litigant wrongfully destroys, alters, or loses ESI -- and thus "spoliates" that evidence. These sanctions include requiring additional discovery, awarding a monetary remedy to the innocent party, imposing a fine on the litigant, issuing special instructions to the jury, excluding certain evidence at trial, or terminating the case with a default judgment or dismissal. A court should always elect the least punitive sanction that can remedy the harm to the innocent party and wield enough force to work as a deterrent. Terminating a case as a discovery sanction is appropriate "in only the most egregious cases, such as where a party has engaged in perjury, tampering with evidence, or intentionally destroying evidence by burning shredding, or wiping out computer hard drives." 

Pension Committee also addresses the difficult question who should bear the burden of establishing that missing or destroyed ESI was relevant to the litigation and that the innocent party has been harmed by its loss. Judge Scheindlin's answer is that the burden may shift depending on how badly the litigant responsible for losing or destroying information has behaved. A willful or grossly negligent litigant is responsible for showing that no harm fell upon the innocent party. But the innocent party must shoulder the burden of proof if the offending litigant behaved only negligently. 

In deciding the case, Judge Scheindlin rejected the defendants' claim that the plaintiffs had engaged in willful misconduct -- and turned down the defendants' request for dismissal as a sanction -- but still found that each plaintiff had been negligent or grossly negligent. All the plaintiffs had failed to timely issue a written litigation hold directing employees to preserve all relevant records and creating a mechanism for collecting the preserved records for discovery. Each grossly negligent plaintiff also had made one or more of the following mistakes: deleting or failing to preserve and collect electronic documents, failing to request documents from key players in the litigation, delegating search efforts without any management supervision, destroying backup data that might have contained the only copies of some key players' documents, and describing their discovery efforts in misleading or inaccurate ways in court submissions. 

Judge Scheindlin used a jury instruction to sanction the plaintiffs who were grossly negligent. She informed the jury that these plaintiffs had been grossly negligent in performing their discovery obligations and had lost evidence as a result. She instructed the jury that it could choose to adopt a rebuttable presumption that the lost evidence was relevant and would have favored the defendants. She also permitted the jury to consider the egregiousness of the plaintiffs' conduct when deciding whether to adopt this presumption.       

Judge Scheindlin imposed monetary sanctions on all the plaintiffs, ordering them to pay the defendants' reasonable attorney's fees and costs attributable to the discovery dispute. She also ordered two of the plaintiffs to provide further discovery if possible, noting that the goal of discovery is "to obtain evidence, not to issue sanctions."   

Pension Committee serves as a cautionary tale: Shoddy discovery efforts can result in serious consequences even when intentions are good. A complicated discovery dispute is not cheap to litigate, and the Pension Committee plaintiffs ended up paying the other side's legal fees in addition to their own. Those found grossly negligent also must now persuade a jury not to presume that any lost evidence was favorable to the defendants, even as they try to focus the jury's attention on the merits of their case.