Another look at Zubulake: Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC

24 May 2011

A Ken Withers Webinar

Approximately six years after deciding the trailblazing and now seminal electronic discovery decisions Zubulake v. UBS Warburg LLC (“Zubulake IV”), 220 F.R.D. 212 (S.D.N.Y. 2003), and Zubulake v. UBS Warburg LLC (“Zubulake V”), 229 F.R.D. 422 (S.D.N.Y. 2004), Judge Shira A. Scheindlin undertook the judicial role of expounding on the duty to preserve and produce electronically stored information (“ESI”) and the sanctions available when those duties are breached.

On January 11, 2010, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Case No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 1839 (“University of Montreal”), Judge Scheindlin admonished the plaintiffs-spoliators for failing to heed the now well-established rules articulated in Zubulake and made it clear that the “rule of lenity” — which courts sometimes invoke in forgiving (even if only to a limited degree) breaches of the duty to preserve where an underlying obligation is not clearly defined — may no longer apply when a litigant fails to implement a written litigation hold to preserve relevant evidence:

Ken Withers, Director of the Judicial Education and Content for The Sedona Conference®, reviews the past year of federal case law on spoliation of ESI in the wake of the Pension Committee decision. He demonstrates how Pension Committee, like a juvenile delinquent, isn’t bad – it’s just greatly misunderstood and that misunderstanding has led to a lot of harsh criticism. However, it has also led to a better understanding of how judges in different feder circuits view sanctions for the filure to reserve ESI. It may also lead to a federal rule that would create a uniform national standard for the imposition of sanctions.

May 19 2011
10:00 am Pacific/12:00 Central/1:00 Eastern
1 hour webinar
CLE Eligible

OLP Members: FREE

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Kenneth J. Withers
The Sedona Conference®, Phoenix, AZ

Ken is the Director of Judicial Education and Content for The Sedona Conference, an Arizona-based non-profit law and policy think tank which has been on the forefront of issues involving complex litigation, intellectual property and antitrust law. Since 1989, he has published several widely-distributed papers on electronic discovery, hosted a popular website on electronic discovery and electronic records management issues, and given presentations at more than 250 conferences and workshops for legal, records management, and industry audiences. His most recent publication is “Ephemeral Data” and the Duty to Preserve Discoverable Electronically Stored Information, 37 U. Balt. L. R. 349 (2008) and Living Daily with Weekley Homes, Texas State Bar Advocate, Vol. 51 (Summer 2010), p. 23. From 1999 through 2005, Ken was a Senior Education Attorney at the Federal Judicial Center in Washington D.C., where he developed Internet-based distance learning programs for the federal judiciary concentrating on issues of technology and the administration of justice. He contributed to several well-known FJC publications, including the Manual for Complex Litigation, Fourth Edition (2004), Effective Use of Courtroom Technology (2001), and the Civil Litigation Management Manual (2001).

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