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E-discovery Ruling Gives Insight on Errors, Sanctions

February 24, 2010

February 24, 2010 (Mountain View, CA) – Robert Brownstone, Law & Technology Director at Fenwick & West LLP, was recently quoted in the Lawyers USA Online article, "E-discovery ruling gives insight on errors, sanctions."

In January, Judge Schira Scheindlin, U. S. District Court in New York, issued a decision in The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities. This decision is significant because it takes the ground rules for e-discovery—which were laid out in Zubulake v UBS Warburg—and establishes a guide to the proper sanctions for e-discovery errors, something that has been lacking since the Zubulake ruling six years ago.

The issue of sanctions began when the defendant, Banc of America Securities, discovered that 13 of the plaintiffs had not only failed to produce documents during discovery, but had also submitted false declarations regarding their document and preservation efforts. The defendants moved for sanctions and requested the complaint be dismissed. Judge Scheindlin did not dismiss the case, but did agree to sanctions. As a result, Judge Scheindlin established the framework for sanctions with regard to e-discovery errors.

Robert Brownstone, Law & Technology Director at Fenwick & West and an Adjunct Professor of e-discovery at the University of San Francisco Law School, said "Judge Scheindlin's expertise in the e-discovery world and the lack of existing case law on the issue means that judges and practitioners in all jurisdictions will look to this decision for guidance."

Brownstone also took note of a portion of the opinion dealing with one party's failure to collect electronically stored information from an ex-employee. "Not making sure that preservation and collection reaches a key player who is an ex-employee, or failing to follow up with an ex-employee, could [lead to] sanctions for gross negligence purposes," Brownstone said. "It is very helpful for any organization to have a 'time out' window whenever anyone leaves the employ," where that person's hard drive and e-mails are stored for a set time period, like 30 or 60 days.

The article may be viewed in its entirety here.