This is the first in a series of guest blogs by some of the top experts in electronic discovery law on Judge Shira A. Scheindlin’s landmark decision, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010). The articles were all originally published together as a white paper in the Legal Hold Pro™ Signature Series, Pension Committee Revisited: One Year Later, edited by Brad Harris and Ron Hedges. The authors, many of whom I’m proud to say are good friends, have each written short gems on Pension Committee. These essays have been selected and edited with care by Brad and Ron and will be republished here in the coming weeks:
Craig Ball: Reflections on Pension Committee
Kevin Brady: Rekindling the National Debate on Preservation Best Practices
William Butterfield: Judge Scheindlin Upholds Fairness to Non-Spoliating Parties
Maura Grossman: Pension Committee: A Catalyst for a Change in the Federal Rules?
John Jablonski: Lessons from the Frontlines
Ralph Losey: Disagreement with Pension Committee Requirement That All Holds Be In Writing
Browning Marean: It‘s Up to Us to Right-Size Our Preservation Efforts
Jonathan Redgrave: Pension Committee Renews Focus on Education and Execution
Denise Talbert: The Importance of Being Transparent
Paul Weiner: E-Discovery Is Here to Stay!
This is the first time I have published articles that are not originals to this blog. But it is such a good series and has not yet received the attention it deserves, so I’m making a special exception. I’ll follow the order of the original publication above and start with Craig Ball’s article (even if he did resort to a Swami costume to top me at the FIOS event last week during LegalTech – see picture below).
So here, dear readers, are erudite words on Pension Committee by the great diviner of meaning on all things e-discovery, Craig D. Ball.
Reflections on Pension Committee
By Craig Ball
Pension Committee is a bracing slap in the face of lawyers complacent in their failure to preserve electronic evidence. But, instead of saying, Thanks, I needed that and resolving to cultivate the skill and judgment needed to manage ESI, some still seek loopholes and rules changes to excuse incompetence. Are we really content to ignore or lose probative evidence rather than gut up and deal with it in cost-effective ways?
Judge Scheindlin‘s frustration fairly leaps from the page. She‘s mad as hell (at those who won‘t meet their duty to preserve ESI), and she‘s not going to take it anymore. Hurrah, Shira!
Pension Committee has its flaws, but Judge Scheindlin has mended some and (in public discourse) has cautioned against reading the decision in support of absurd results. Persistent concerns center on the dictate that a failure to issue a written legal hold is gross negligence per se, as well as the court‘s imposition of severe sanctions without proof that materially relevant information was lost. These concerns have prompted other influential jurists to (respectfully) distance themselves from the case as precedent.
Further, Pension Committee‘s unfortunate emphasis on the written legal hold as more document than process is prompting lawyers to spew deluges of boilerplate hold notices at clueless clients on the theory that if it moves, you hand it a hold notice, and if it doesn‘t move, you hold onto it. Hold directives that fail to communicate specific, relevant steps for custodians to follow are merely window dressing.
Despite all, Judge Scheindlin‘s message is clear and compelling: a proper litigation hold demands prompt, deliberate action by parties coupled with strong, skilled guidance from counsel. Preservation is a duty, and the negligent failure to preserve will be met with remedial or punitive sanctions geared to the gravity of the failure. Justice Oliver Wendell Holmes famously observed, Hard cases make bad law. Perhaps because it‘s still so hard for litigants and courts to grasp electronic evidence, the e-discovery case law is plagued by decisions that are rife with sense and sagacity within the cauldron of the case, but smack of bad policy and law on the cold pages of the reporter (emphasis added). Judge Scheindlin‘s holdings in Pension Committee were measured and wise vis-à-vis the case before her, but could drive draconian outcomes if applied too literally. Handle with care.
Even if Pension Committee proves an outlier, its enduring value flows from the spotlight it shines on preservation and the impetus it supplies to act swiftly and decisively to guard against spoliation of ESI.