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Electronic Discovery Update

In the last post on Electronic Discovery Compliance, this blog explored Judge Sheindlin’s most recent decision involving litigation opponents’ duties to preserve and produce evidence during litigation, The Pension Committee of the University of Montreal Pension Plan v. Banc of America Sec., LLC. In May 2010, Judge Sheindlin entered an important amendment to her decision. The amendment clarifies language in the original opinion that could have led to confusion. The original sentence, emphasized with underlining, read: “By contrast, the 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 negligence as opposed to a higher degree of culpability.” Now, that sentence reads: “By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence.”

The new sentence incorporates two important concepts that have an overall softening effect on the original language used. First, with this amended text Judge Scheindlin indicated that judges expect litigants to obtain records from all employees who had any involvement with the issue, not simply all employees of an organization. This distinction makes a huge difference. If a company has 7,000 employees, but only 100 were potentially involved in the issues, a company tasked with obtaining records can obtain them from the 100, not the 7,000, without running afoul of its mandate to preserve evidence. The other change in the sentence suggests that a company’s failure to obtain records could constitute negligence, but doesn’t likely constitute negligence. Thus, in each case where there is an accusation that evidence wasn’t preserved, the judge will look at the facts of the case to determine if the failure was negligent, but won’t assume it was negligent from the start.

Erin L. McDermit, Employment Group