Zubulake revisited: Shifting standards in e-discovery

Failure to issue a litigation hold may not always be gross negligence

Since its inception, the rule forged by Judge Shira Scheindlin in the Zubulake v. UBS Warburg and Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities decisions—that the failure to implement a written litigation hold is gross negligence per se—has been the “gold standard” in e-discovery. However, in light of recent case law departures from Zubulake, that standard might be changing in 2013 and beyond.

Litigation holds 101

What does it all mean?

Chin established that, depending on the facts, if a party acts reasonably and in good faith to preserve documents, it may be off the hook for severe sanctions. However, many commentators have argued that this does not change best practices—that parties should still issue a written litigation hold in accordance with Pension Committee.

Contributing Author

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Michele Lange

Michele C.S. Lange is the director of thought leadership and industry relations for Kroll Ontrack. In this role, she regularly writes and speaks on topics...

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