‘Zubulake Revisited: Six Years Later’

Published in Law360, New York on January 15, 2010 Judge Shira A. Scheindlin of the Southern District of New York has issued an important new opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 05-Civ. 09016 (S.D.N.Y. Jan. [15], 2010), in which she lays out a framework for courts to assess discovery misconduct and sanctions.

The Jan. [15], 2010 opinion, which Judge Scheindlin titled "Zubulake Revisited: Six Years Later," sanctions 13 plaintiffs for failing to preserve and collect documents.

Though the case did not present any "egregious examples of litigants purposefully destroying evidence," Judge Scheindlin imposed sanctions based on plaintiffs' failure "to timely institute written litigation holds" and their "careless and indifferent collection efforts after the duty to preserve arose." Slip op. at 5.