Academic journal article Albany Law Review

Deconstructing Pension Committee: The Evolving Rules of Evidence Spoliation and Sanctions in the Electronic Discovery Era

Academic journal article Albany Law Review

Deconstructing Pension Committee: The Evolving Rules of Evidence Spoliation and Sanctions in the Electronic Discovery Era

Article excerpt

I. INTRODUCTION

U.S. District Court Judge Shira Scheindlin is arguably the nation's most influential judicial authority on the topic of electronic discovery ("e-discovery"). This article will review Judge Scheindlin's seminal e-discovery opinion in Pension Committee, (1) and analyze the subsequent treatment of, and marks left by, a few notable aspects of her ruling.

A discussion of Judge Scheindlin's Pension Committee Order and Opinion is incomplete without first mentioning the series of decisions which are her greatest legacy in the area of e-discovery, collectively referred to as Zubulake. (2) Indeed, the very first words Judge Scheindlin penned in Pension Committee read "Zubulake Revisited: Six Years Later." (3)

In the Zubulake series of opinions, Judge Scheindlin brought into focus the foundational legal principles relevant to modern discovery practice: preservation, production, and spoliation (4) of electronically stored information. Judge Scheindlin illuminated the legal rules governing these emerging issues, and helped pave the way for the December 2006 amendments to the Federal Rules of Civil Procedure. (5) Whether one agrees or disagrees with the lines drawn by Judge Scheindlin, her Zubulake opinions indisputably captured widespread attention and left indelible marks on the nation's judicial system. Indeed, the Zubulake opinions have been cited extensively, and are afforded deferential treatment by numerous District Courts (6) and by trial and/or appellate courts in several states. (7) It truly was a landmark case.

A simple reading of Pension Committee may leave one wondering why others consider it the most notable e-discovery opinion since Zubulake. After all, Judge Scheindlin simply revisits many of the ideas and standards she first articulated in Zubulake, without ostensibly upsetting or extending her initial rulings significantly. (8) Upon close examination, however, practical intricacies are revealed that substantially affect discovery practice. Moreover, the subsequent treatment of Pension Committee by other courts has highlighted the absence (and need for) national standards pertaining to the preservation of electronically stored information and the appropriate protocols governing spoliation sanctions should litigants fail to do so adequately.

Judge Scheindlin's decision in Pension Committee is probably best characterized as an attempt to further ignite litigants--and their counsel--to take their discovery obligations seriously, and to reinforce a sense of fairness for victims of spoliation. To this end, Pension Committee is noteworthy for two reasons: (1) it formulaically links the failure to carry out defined preservation tasks with concepts of negligence and gross negligence; and (2) where spoliation results from gross negligence, it provides for rebuttable presumptions that the information lost was relevant and that the innocent party was prejudiced by the spoliation. (9)

For these same reasons, Pension Committee is widely criticized for establishing unreasonably stringent per se rules that are too disconnected from everyday "in the trenches" litigation practice, and for swinging the pendulum too far in favor of parties seeking spoliation sanctions by relaxing the burden of proof (and thus encouraging spoliation motions as an offensive tactic). (10) For example, Judge Scheindlin deems the failure to utilize a written litigation hold notice an act of gross negligence in and of itself (even if verbal instructions are given); the consequence of which is a nearly automatic presumption, as matter of law, that a party moving for severe sanctions was actually prejudiced by an alleged loss of discoverable information. (11)

The debate surrounding Pension Committee--and more generally spoliation and sanctions--boils down to the trilogy of scienter, relevance, and prejudice alluded to above, and the effect each of these elements has on one another in the context of imposing severe sanctions, such as an adverse inference jury instruction. …

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