"Judge Scheindlin Issues Landmark Decision on Preservation of Electronic Evidence, Spoliation and Sanctions"
by Susan Ardisson, Esq.
(Special Issue - January 2010)
In a 38 page opinion, Judge Shira A. Scheindlin began her discussion and analysis in Pension Committee of University of Montreal Pension Plan, et al. v. Bank of America Securities, LLC, et al. 2010 WL 93124 (S.D.N.Y. Jan. 11, 2010) with the admonition that “[t]hose who cannot remember the past are condemned to repeat it.”* Citing the court’s previous decisions in Zubulake, Judge Scheindlin wrote that:
"By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records paper or electronic and to search in the right places for those records, will inevitably result in the spoliation of evidence."
In a motion brought by the Citco defendants against thirteen plaintiffs for spoliation of evidence and the imposition of sanctions, the court concluded that all thirteen plaintiffs “were either negligent or grossly negligent in meeting their discovery obligations.” Stating that most of the plaintiffs “conducted discovery in an ignorant and indifferent fashion,” the court awarded monetary sanctions against all thirteen plaintiffs and held that the defendants were entitled to an adverse inference jury instruction against six plaintiffs whose failure to preserve relevant electronic evidence was “grossly negligent.”