IP Master Class: New Standards for Document Preservation and Collection Procedures─Minimize Your Risks

Businesses, litigants, and even potential litigants may need to reevaluate their document preservation and collection procedures to minimize the risk of sanctions, because of an opinion issued on January 15, 2009, Pension Committee of University of Montreal Pension Plan v. Banc of America Securities, LLC, Amended Order, No. 05 Civ. 9016 (S.D.N.Y. Jan. 15, 2010) (Pension). Under Pension, a party may be sanctioned even when the violating party did not act in bad faith. In cases of "gross negligence," Judge Scheindlin states that courts “may” presume that the missing documents are relevant and that their absence is prejudicial to the innocent party. The risk of such sanctions is evident when one considers the list of E-Discovery failures that are now considered "gross negligence." As examples, under Pension, "gross negligence" can be found based on "the failure to issue a written litigation hold" or relying solely on employees to identify responsive documents. This opinion is receiving great attention, because U.S. District Judge Shira Scheindlin also authored the Zubulake opinions in 2003-04. We will discuss the various issues and directions from Pension and their relation to IP litigation.