On Jan. 11, 2010, U.S. District Court Judge Shira Scheindlin issued a landmark opinion that has major implications for in-house counsel and how companies handle legal holds.
Although The Pension Committee v. Banc of America Securities (as Amended Jan. 15, 2010) (pdf) was issued in the first weeks of the year, it is likely to become one of the most important opinions of the year. In the opinion, Judge Scheindlin reiterates a host of e-discovery duties made famous by her Zubulake series of opinions (pdf). Key to her opinion is the duty to issue and manage written litigation holds or risk severe sanctions.
The duty to issue a written litigation hold whenever litigation is anticipated is clearly viewed as the only way for litigants to demonstrate the proper discharge of their preservation obligations in federal court. The clear message of Judge Scheindlin's opinion, which took more than 300 collective hours of her time and that of her two clerks, is that organizations must take certain steps necessary to properly preserve ESI.
The case involves a complex securities litigation filed by a group of 96 investors trying to recover $550 million in losses due to the collapse of two British Virgin Islands-based hedge funds. The case was filed in the Southern District of Florida in February 2004 and was then transferred to the Southern District of New York in October 2005. Defendants began asserting discovery violations from October 2007 to June 2008, including allegations that plaintiffs failed to preserve ESI and other documents and then made “false and misleading declarations regarding their document collection and preservation efforts.”
via If You Hold On for One More Daaaay: How Companies Have to Handle Legal Holds.
