Electronic Discovery Update: Negligence, Gross Negligence and Willfulness in Lost or Destroyed Information

by George B. Murr
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March, 2010

In Pension Comm. of the Univ. of Montreal v. Banc of America Sec., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Shira A. Scheindlin, architect of the Zubulake opinions foreshadowing many of the E-Discovery changes to the Federal Rules, issued what may be another watershed opinion. Judge Scheindlin sets forth possible standards for negligence, gross negligence and willfulness in the context of the failure to produce electronically-stored information (“ESI”). Accordingly, even in a case that does not involve “egregious examples litigants purposefully destroying evidence,” “where documents are destroyed, a failure to preserve evidence resulting in loss or destruction of relevant ESI is surely negligent, and, depending upon the circumstances, may be grossly negligent or willful.” Id. at *2, *3.

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