In a bombshell opinion and order issued just weeks ago by U.S. Southern District of New York Judge Shira A. Scheindlin, litigants and lawyers have been admonished (again) about their discovery obligations, particularly, to preserve, collect and produce electronic documents, records and data in their possession, custody, or control. Scheindlin, one of the foremost experts on the law of electronic discovery, was the author of the Zubulake line of decisions that many say ushered in a new era of robust electronic discovery. Now, her new blockbuster is the Pension Committee decision,[FOOTNOTE 1] which carries the picturesque title, “'Zubulake' Revisited: Six Years Later.” Pension Committee promises to be a guide and oft-cited framework for complying with electronic discovery requirements.

Since the new decision copiously analyzes a series of discovery failures that led to sanctions against numerous plaintiff-companies, it is a practical roadmap on how real people and real attorneys may be confronted by real challenges regarding compliance only to wind up making judgments that come back to haunt them.

Pension Committee also is a kind of “how-to” manual setting forth key principles relating to issuing, monitoring, and enforcing litigation holds, discharging preservation and search techniques, and documenting appropriate behind-the-scenes conduct so that the responding party can withstand accusations of insufficient disclosure by the adversary. Then, too, there is advice regarding sanctions, what needs to be proved and by whom, the criteria of “relevance” and “prejudice,” the legal behavior standards of negligence, gross negligence and willfulness, available remedies and, even, the text of an actual spoliation instruction.

The principles and lessons to be learned from Pension Committee cut across the spectrum of major litigation. Lawyers, particularly, should become avid readers and keen students of the opinion for they are sucked into the eye of the discovery hurricane once they work on significant cases. The burdens being thrust upon lawyers’ shoulders are heavy indeed. They present formidable challenges. Corporate or in-house counsels are not exempt. Electronic discovery has made complex litigation more onerous, more expensive and more time-consuming.

Pension Committee, initially, will likely be viewed by many as a burden-imposing treatise, intrusive in the breadth and scope of the obligations spelled out by the court. Yet, because of its declarative clarity, the decision can be used by responsible lawyers to help fashion a reasonable template for proceeding to litigate in the electronic records era. Clear rules, though deemed burdensome, help to minimize uncertainties and guesswork. Crisp admonitions against misbehavior can help mold vigilant practices by the well-intentioned. But, inevitably, life and survival in a post-Pension Committee world will come with a significant price tag. And, “gray area” questions will spring up nonetheless, catalyzing new guesswork by lawyers.

via Law.com – ‘Pension Committee’ Clarifies E-Discovery Requirements.