This entry is from a special guest and friend of the firm, Jonathan Redgrave. Jonathan is a partner at Nixon Peabody LLP in Washington, D.C., and was the first chair (and is currently chair emeritus) of the original Sedona Conference Working Group on Electronic Document Retention and Production in the United States. He has spoken at numerous conferences in Canada (as well as the rest of the world) and has been a key supporter of the work of Sedona Canada.
E-Discovery News from Across the Border
Nothing like starting the year with e-discovery fireworks like an 87 page opinion from the Hon. Shira A. Scheindlin, a U.S. District Judge from the Southern District of New York. Judge Scheindlin, of the Zubulake series of cases that have been oft-cited in cases and conferences on both sides of the border, had occasion in her latest opinion to walk through her concerns relating to legal holds, preservation and sanctions. While the precise legal holdings of the case are certainly limited to her courtroom, the practical impact of the detailed decision is likely to have far reaching import.
Fittingly for this blog, the first named plaintiff (of thirteen) hails from Canada: The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., U.S. District Court, Southern District of New York, January 10, 2010). In the course of the 87 page sojourn through facts and law, Judge Scheindlin take the different plaintiffs to tasks for various failures to preserve and produce information. Her findings range from negligence to gross negligence, and sanctions imposed include additional (limited) discovery, an award of fees and, for some, an adverse inference jury instruction.
What in particular can Canadians learn from below the border? The failure to have a meaningful, written instruction to employees to preserve information is simply inexcusable for Judge Scheindlin. Making sure that this written instruction provides adequate instructions allowing the custodian to take appropriate action is also critical to avoid negligence. Further, leaving custodians to execute legal holds without supervision is also a no-no.
The opinion also documents concurrent failures to disseminate the holds broadly enough and to capture and preserve appropriate stores of electronic information In some instances, some key employees simply were not identified and informed. In others, pertinent back-up tapes and computers were ignored and the evidence ultimately lost. In the end, the defendants were able to demonstrate the gaps and omissions were significant enough to warrant the sanctions imposed on the plaintiffs.
This opinion continues a trend that is emerging from other cases at the end of 2009 in the United States—judicial patience with inadequate and inept discovery preparedness and execution is wearing thin. The premium on getting discovery (especially e-discovery) right is rising quickly. There is a clear warning to corporate and institutional parties large and small—you need to know what you are doing with respect to the preservation and production of electronic information or else face significant consequences for failures.
These lessons are not confined by the border by passport control, and Canadian clients and counsel alike should take heed.
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