The Pension Committee Decision: The Duty to Preserve Records

THE CIVIL LITIGATOR Caleb Durling is an associate focusing on civil and commercial litigation at Reilly Pozner LLP in Denver (303) 893-6100, cdurling@rplaw.com. He thanks Matt Spohn, Marisa Hudson-Arney, and Ellie Lockwood, all of Reilly Pozner, for their assistance in the preparation of this article. No one at Reilly Pozner was involved in the Pension Committee case. This article examines the Pension Committee decision, in which Judge Shira Scheindlin of the Southern District of New York set out significant new law concerning discovery obligations, this time focusing on those who are negligent or grossly negligent in failing to preserve electronic and paper documents. An earlier series of decisions by Judge Scheindlin laying out rules on e-discovery, known as the Zubulake cases, were discussed in a two-part article published in The Colorado Lawyer in August and September 2007. The Pension Committee Decision: The Duty to Preserve Records by Caleb Durling 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. This case does not present any egregious examples of litigants purposefully destroying evidence. This is a case where plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose. As a result, there can be little doubt that some documents were lost or destroyed. 1 Over the last decade, courts have refined the obligations of parties to preserve and collect paper and electronic documents. The continual and rapid changes in technology and the expansion of media on which people

create and store information have made these obligations increasingly important in civil litigation. In the Zubulake v. UBS Warburg LLC cases, 2 Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York profoundly influenced how courts across the country understand and handle discovery. In a series of decisions, she synthesized and laid out important new rules as to when the duty to preserve paper and electronic documents arises, who should bear the cost of retrieving hard-to-access electronic documents, and how to determine what sanctions to award for willful misconduct. In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (Pension Committee), Judge Scheindlin has turned to the thornier problems of defining parties obligations to preserve and collect relevant documents, both paper and electronic, and the sanctions for the parties who do not act willfully or in bad faith but who, by handling their discovery obligations with a pure heart and an empty head, 3 cause the loss or destruction of documents through negligence or gross negligence. As with her Zubulake opinions, courts and litigants across the country, including in Colorado, will rely on Judge Scheindlin s framework and reasoning in Pension Committee when discovery problems emerge, particularly with regard to the loss of paper and electronic documents due to carelessness or gross negligence. This article, after considering Judge Scheindlin s key role in developing discovery rules, analyzes the Pension Committee case and considers the impact its holdings will have on discovery issues in Colorado. Why Pension Committee Matters in Colorado Although Pension Committee is not binding precedent in any Colorado court, state and federal courts here likely will rely on the opinion when facing discovery issues. Colorado state courts have yet to adopt any specific rules of civil procedure to deal with the challenges of discovery of electronic documents. Instead, state courts apply the pre-existing rules of civil procedure to handle such discovery on an ad hoc basis. 4 Colorado

state courts reliance on general discovery rules means that when e- discovery issues are litigated in state courts, parties and judges frequently will look to federal courts for guidance. 5 Within the federal courts, Judge Scheindlin is one of the leading experts on discovery issues, particularly of electronic documents, and is well known for her five Zubulake opinions. 6 In Zubulake v. UBS Warburg LLC, a rather innocuous employment dispute over gender discrimination and retaliation became overwhelmed by discovery preservation and collection issues. The lessons from the Zubulake cases were discussed in depth in a two-part article published in The Colorado Lawyer in 2007. 7 In Zubulake I, Judge Scheindlin first had to determine whether the defendant/employer was required to search backup tapes for deleted e- mails. 8 She then set out a balancing test to analyze which party would bear the cost of the retrieval. 9 After resolving an unrelated issue in Zubulake II, 10 in Zubulake III, Judge Scheindlin applied her cost-shifting balancing test to determine which party would have to pay for discovery of inaccessible information. 11 Zubulake IV, the most influential of the five opinions, held that a party s duty to preserve documents arises when a party reasonably anticipates litigation. 12 Determining the accrual date for when the duty to preserve arises is an important first step in managing discovery, and two federal court decisions in Colorado have relied on Zubulake IV for this accrual rule. 13 Zubulake IV also addressed the issue of sanctions for a party s failure to preserve backup tapes. 14 Finally, in Zubulake V, Judge Scheindlin found that the defendant had (1) willfully destroyed relevant e-mails; (2) failed to request information from a key employee; (3) failed to issue a litigation hold instruction to another key employee; and (4) failed to safeguard backup tapes. 15 As a result, she awarded monetary sanctions to the plaintiff and ordered that the plaintiff also was entitled to an adverse inference instruction concerning the deleted e-mails and destroyed backup tapes. 16

The Zubulake opinions have been widely cited and relied on by federal and state courts across the nation grappling with discovery issues. To give some context to the magnitude of their importance, since the opinions were issued in 2003 and 2004, they have been cited in more than 300 reported decisions and 2,200 articles and treatises. 17 As a result, when Judge Scheindlin subtitled the Pension Committee opinion, Zubulake Revisited: Six Years Later, 18 courts and commentators around the country took notice. The Pension Committee Case The Pension Committee case itself concerned a group of primarily Canadian institutional investors who were suing to recover $550 million in losses from the liquidation of two offshore hedge funds sited in the British Virgin Islands. 19 Prior to the funds liquidation, in April 2003 the fund manager had declared bankruptcy. 20 In October and November 2003, an ad hoc committee of investors retained lead counsel for the suit. 21 The investors first filed suit in the Southern District of Florida in February 2004, and the case was transferred to the Southern District of New York in October 2005. 22 In 2004, a stay was issued in the case pursuant to the Private Securities Litigation Reform Act; the stay remained in place until early 2007. 23 During that three-year stay, plaintiffs counsel did not focus on document preservation and collection; for example, no written litigation hold was issued until 2007. 24 The plaintiffs lack of document retention, resulting in part from the failure to timely institute a litigation hold, became evident in 2007, when depositions showed gaps in plaintiffs document production. 25 After the preservation issue emerged, the parties engaged in eight months of depositions of and declarations by plaintiffs witnesses concerning plaintiffs document retention and production efforts, 26 with the main inquiry being steps taken in late 2003 and early 2004 to preserve documents. 27 Many declarants first claimed that their respective companies had located, preserved, and produced all fund-related documents in their

possession during the 2003 04 search, and that no responsive documents were destroyed or discarded after the duty to preserve had arisen. 28 However, the court found that nearly all the declarations were false and misleading and/or executed by a declarant without personal knowledge of its contents. 29 Unproduced documents later were found and many declarations had to be revised when further investigation and crossreferencing of document production revealed 311 documents from twelve plaintiffs that should have been produced but were not produced. 30 After completing these depositions and scrutinizing plaintiffs declarations and revised declarations, defendants moved for sanctions. 31 To resolve the motion, the court conducted an analysis in five steps: (1) determine when the duty to preserve arose; (2) define the spectrum of culpability during discovery; (3) clarify the discovery obligations chronologically and assess the culpability of certain missteps; (4) assess which party bears the burden of proving that evidence was lost and the resulting consequence of that loss; and (5) determine the appropriate sanction. 32 The Duty to Preserve The duty to preserve arises, as Judge Scheindlin explained in Zubulake IV, when a party reasonably anticipates litigation. 33 At that point, the party must suspend any routine document retention and destruction policy and institute a litigation hold. 34 The court noted that a plaintiff s duty to preserve often arises before the litigation starts because Plaintiffs control the timing of litigation. 35 Here, the court found that the duty to preserve arose in April 2003, when the hedge funds first filed bankruptcy, at least one plaintiff filed a complaint with the local financial services commission, some other plaintiffs retained counsel, and at least one plaintiff initiated contact with other plaintiffs. 36 Defining the Behavioral Spectrum of Discovery Misconduct Believing that prior case law had not clearly detailed the spectrum of culpability in the discovery context, Judge Scheindlin described a

continuum of misconduct ranging from negligence to gross negligence to willfulness. 37 Borrowing from standards applicable to tort law, the court first described negligence as unreasonable conduct in that it creates a risk of harm to others. 38 Moving along the continuum, the court then defined gross negligence as a failure to exercise even that care which a careless person would use. 39 The court termed willfulness as: the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. 40 Chronologically Determining Discovery Obligations In perhaps the most significant portion of the opinion, Judge Scheindlin then applied these definitions to determine the level of culpability for failing to fulfill different discovery obligations. Chronologically, the first duty to arise is the duty to preserve relevant information. 41 The failure to preserve information that results in the loss or destruction of relevant evidence surely is negligent behavior and possibly, based on the facts, is grossly negligent or willful behavior. 42 For example, the intentional destruction of relevant records would be willful. 43 In addition, Judge Scheindlin reiterated that possibly as early as October 2003, when Zubulake IV was issued, and no later than July 2004 when Zubulake V was issued, the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information. 44 The next obligation is the collection and review of evidence. 45 During the collection and review process, negligent acts include: 1) the failure to collect or a sloppy effort at collecting or reviewing paper or electronic documents; 2) the failure to obtain records from all employees who would have some but not substantial contact with the litigation;

3) the failure to take all appropriate measures to preserve paper or electronic documents; and 4) the failure to assess the accuracy and validity of search terms used in collection process. 46 Once the duty to preserve has attached, grossly negligent or potentially willful acts include: 1) the failure to issue a written litigation hold; 2) the failure to identify all key players and to ensure their paper and electronic documents have been preserved; 3) the failure to cease deletion of e-mails and to preserve former employee records within the party s possession, custody, or control; and 4) the failure to preserve backup tapes when they are the sole source of relevant information or if they relate to key players, if the relevant information maintained by those key players is not obtainable from more readily accessible sources. 47 Finally, the court set out expectations for declarations submitted about discovery searches. The court ruled that parties need to be well-prepared and able to answer questions, such as [w]hich files were searched, how the search was conducted, who was asked to search, what they were told, and the extent of any supervision. 48 Burdens of Proof The court then turned to the issue of assigning the burden of proof when documents have been wholly lost and thus are unavailable. 49 This is a difficult situation, forcing courts and parties to speculate about the contents of the lost documents, drawing inferences from existing documents and from recollections in depositions. 50 The court set out a three-prong test that must be satisfied for the court to award sanctions against the spoliating party: (1) the spoliating party must have had control of the evidence and an obligation to preserve it when the destruction or loss occurred; (2) the spoliating party must have acted with a culpable state of mind when the evidence was destroyed or lost; and (3) the

missing evidence must have been relevant and its loss prejudiced the innocent party s claim or defense. 51 For the first prong, the innocent party bears the burden of proving that documents were destroyed after the duty to preserve had attached. 52 Proving when a document was destroyed can be difficult. In Pension Committee, where the duty to preserve arose in April 2003, the defendants were able to establish that some documents had been destroyed after the duty arose, because the documents were created after that date. 53 However, the defendants had difficulty proving whether documents created prior to April 2003 had been destroyed before or after the duty arose. 54 As to the second and third prongs, a presumption may arise when the spoliating party acted more culpably. If, for example, the spoliating party s culpable state of mind was grossly negligent or willful (prong two), the lost evidence s relevance and prejudice (prong three) may be presumed and, as discussed more fully below, the burden shifts to the spoliating party to rebut the presumption. 55 On the other hand, when the spoliating party acted negligently (prong two), the innocent party must prove both relevance and prejudice (prong three). 56 Also as to prongs two and three, the weight the court gives to the prongs differs depending on the severity of the sanction sought. When a party seeks lesser sanctions, like fines or cost shifting, the court examines the spoliating party s conduct (prong two) more than the relevance and resulting prejudice of the lost documents on the innocent party (prong three). 57 For more severe sanctions, such as dismissal or an adverse inference instruction, the court weighs prong three s relevance and prejudice as heavily as prong two s culpability of the conduct. 58 In effect, then, for a lesser sanction, the focus is on the spoliating party s conduct, whereas for more severe sanctions, it examines whether the conduct actually prejudiced the innocent party. As to the third prong, relevance in the context of sanctions involves a higher level of probity than what is required under Federal Rule of Evidence 401 (as well as the substantially similar Colorado Rule of

Evidence 401). Relevance in this context means more than just responsive to the document request it means the information also would be helpful to the innocent party in proving its claims or defenses, such that the party is prejudiced without the evidence. 59 Sanctions Sanctions are within the trial judge s discretion and are decided on a case-by-case basis. 60 That discretion is particularly broad in the case of the nonproduction of evidence, and the court will have a gut reaction as to whether the litigant made an effort to comply with its discovery obligations. 61 The goals of sanctions are to: (1) deter spoliation; (2) place the risk of erroneous judgment on the spoliating party; and (3) restore the prejudiced party to the position it would have been in but for the wrongful destruction. 62 The available sanctions, from least to most harsh, are: further discovery, cost shifting, fines, adverse jury instructions, preclusion, and entry of default judgment or dismissal (the so-called terminating sanctions ). 63 Terminating sanctions generally are available in only the most egregious cases, such as for perjury; tampering with evidence; and intentional destruction of evidence by burning, shredding, or wiping clean a computer s hard drive. 64 In all cases, the court should impose the least harsh sanction that can provide an adequate remedy. 65 In Pension Committee, the court awarded monetary sanctions and a permissive adverse inference instruction. 66 For monetary sanctions, the defendants were awarded their reasonable costs against all spoliating plaintiffs, including attorney fees, for reviewing declarations, deposing declarants, and bringing the motion. 67 In addition, the spoliating parties would have to conduct any additional required searches of backup tapes at their own expense. 68 For the instruction, because there was no evidence of willful misconduct, the court ruled that the presumption should be permissive, rather than mandatory. 69 Any presumption also would be rebuttable by the

spoliating plaintiffs. 70 For Judge Scheindlin, keeping the presumption rebuttable is critical and borne out of a concern that litigation otherwise can become a gotcha game rather than a full and fair opportunity to air the merits of a dispute. 71 The court then set out the burden-shifting test for the rebuttable presumption: When the spoliating party s conduct is sufficiently egregious to justify a court s imposition of a presumption of relevance and prejudice, or when the spoliating party s conduct warrants permitting the jury to make such a presumption, the burden then shifts to the spoliating party to rebut that presumption.... If the spoliating party demonstrates to a court s satisfaction that there could not have been any prejudice to the innocent party, then no jury instruction will be warranted, although a lesser sanction might still be required. 72 Thus, for the spoliating plaintiffs who were grossly negligent, the court ruled that the jury could presume, if it chose, both the relevance of the wholly lost documents and the resulting prejudice, although the plaintiffs would have the opportunity to rebut the presumption. 73 For those plaintiffs who acted negligently, the court found that the defendants had carried their limited burden of proving the relevance of any missing documents, but had failed to demonstrate prejudice. 74 Accordingly, the court gave no jury instruction as to the negligent plaintiffs, only the monetary sanctions and further discovery discussed above. 75 Key Takeaways From the Case Pension Committee includes a number of important lessons for courts and litigants across the nation. The opinion s significance already has been underscored by court decisions and journal articles that have relied on and analyzed the decision in the months since its issuance. One District of Colorado opinion has held:

The parties and Special Master agree that the standard set forth in [Pension Committee] provides the appropriate analysis regarding the types of sanctions which are justified when a party destroys evidence. 76 A federal district court in Texas applauded the decision, proclaiming: Judge Scheindlin has again done the courts a great service by laying out a careful analysis of spoliation and sanctions issues in electronic discovery. 77 A federal district court in Illinois described the opinion as express[ing] the basic obligation of parties to preserve and produce documents relating to a claim, and the consequences that flow from a failure to observe that obligation. 78 The case has two overarching takeaways for litigants. First, document preservation is an obligation that cannot be ignored. Second, there now are relatively well-defined standards of conduct and sanctions available to enforce that obligation. Discovery Obligations Cannot Be Ignored On the first point, even today, the reaction of many counsel and parties to discovery obligations, particularly of electronic documents, is that it is not their problem either because of the jurisdiction, type of case, or their position in the litigation. Every case could be and likely now is a case involving electronic and paper document discovery. Pension Committee removes all doubt concerning both the duty to preserve paper and electronic documents and the sanctions that can result for even the negligent failure to satisfy that duty. As to jurisdiction, although Colorado has not revised its rules of civil procedure to directly address the discovery obligations applicable to electronic documents, the general discovery rules still apply, and electronic documents should be considered in every Colorado case state or federal. Moreover, in Pension Committee, the spoliating parties were largely Canadian institutional investors, dealing with British Virgin Islands hedge funds, suing originally in federal court in Florida. In the end, the discovery

protocol of the Southern District of New York profoundly changed the case. This confirms that any case, no matter how seemingly small and local, could end up in a jurisdiction or before a judge that has become sensitive to discovery obligations, particularly of electronic documents. Moreover, the increasingly technological world means that discovery issues will continue to grow and become more complex. Indeed, the introduction of the Apple ipad this year means there is yet another device on which documents may be created or e-mails stored. This and other new devices containing electronic documents will have to be accounted for in future litigation. As to the type of case and position in the litigation, the Zubulake cases demonstrated that discovery issues can explode and take over even an ordinary case. The Pension Committee decision takes that lesson further. By addressing the plaintiffs discovery failures, Pension Committee reinforces the idea that all parties not just defendants should be concerned about their retention obligations and the problems that can result from even a negligent failure to satisfy those obligations. Pension Committee also teaches that discovery errors and the resulting casechanging sanctions can no longer be ascribed only to deliberate malfeasance, but also to mere indifference and carelessness. The case was not about parties deliberately shredding documents or wiping out hard drives. Rather, as Judge Scheindlin put it, the case was about the serious sanctions that can result from those acting with pure hearts but empty heads. 79 That the plaintiffs committed these errors by accident should further reinforce the message that discovery problems can happen in any case where parties and their counsel lose sight of their obligations in the rush of litigation. The case s final dimension is to recognize that ignoring discovery obligation can have a staggering impact on a case once irregularities emerge. The parties spent more than half a year on discovery, depositions, and declarations in which the overriding purpose was not to advance plaintiffs case, but just to ascertain what efforts had been made to preserve

and collect evidence by those plaintiffs four years earlier. Moreover, this considerable delay was the result of only thirteen of the ninety-six plaintiffs less than one-seventh of the plaintiff class failing to perform their e-discovery obligations. The result was severe sanctions that could completely change the plaintiffs likelihood of securing a favorable outcome from the litigation. The effect of these obligations falls not just on the parties, but also on the courts. Judge Scheindlin described the sanctions motions as very, very time consuming, distracting, and expensive for the parties and the court, and she estimated that she and her two law clerks spent three hundred hours resolving the sanctions motions. 80 More important, the sanction motions, and the behavior that caused them to be made, divert court time from other important duties namely deciding cases on the merits. 81 Standards of Conduct in Handling Discovery Pension Committee has spawned a whole series of rules on discovery obligations and sanctions when those obligations are not met. First, the opinion has further stressed that the duty to preserve attaches once a party reasonably anticipates litigation. Although the Southern District of New York adopted this rule before other courts did, the rule is now well established. 82 The case s elucidation of what constitutes negligence, gross negligence, and willfulness during the discovery context is likely to become widely accepted standards, meaning more and more litigants across the country will be held to those expectations. Beginning chronologically with a duty to preserve once a party reasonably anticipates litigation, retained counsel and general counsel now have what is closer to being a task list of what should and should not happen at that point, including: 1) issue a written litigation hold; 2) identify all key players and ensure that their electronic and paper records have been preserved;

3) cease deletion of e-mail and preserve former employee records within the party s possession, custody, or control; 4) preserve backup tapes when they are the sole source of relevant information or if they relate to key players, if the relevant information maintained by those key players is not obtainable from more readily accessible sources; and 5) prepare declarants to speak with specificity and full knowledge as to preservation and collection efforts. Judge Scheindlin s guidance and reasoning also likely will be heavily cited when parties must speculate as to the relevance and prejudice of wholly lost documents. Judge Scheindlin s effort to preserve the rebuttable presumption for the spoliating party, while also giving the innocent party the benefit of the doubt as to wholly lost documents, will be influential. Further, the case s discussion of sanctions also will be cited, because the adverse inference instructions and spoliation charges were early efforts to sanction those charged with spoliation due to negligence and gross negligence. Conclusion Driven by advances in technology, discovery obligations continue to evolve. In Pension Committee, Judge Shira Scheindlin has meticulously laid out the expectations and sanctions regarding these obligations. Lawyers in Colorado and elsewhere in the country should be aware of the coalescing obligations, because the next innocuous case in which a seemingly few e- mails were involved could turn into a trial on preservation efforts rather than on the merits a steep price to pay for inattention.

Notes 1. Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 463 (S.D.N.Y. 2010). 2. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I); Zubulake v. UBS Warburg LLC, 230 F.R.D. 290 (S.D.N.Y. 2003) (Zubulake II); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V). 3. Pension Committee, supra note 1 at 464. 4. See Hyatt and Hess, Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes, 4 Colo. Prac. R 34 ( By allowing access to data compilations, the rule specifically contemplates the discovery of information stored in computers, servers, or on diskettes, CDs or DVDs.... ). Accord People v. Spykstra, 234 P.3d 662, 663 (Colo. 2010) (analyzing dispute over subpoena filed in criminal case for access to third party s electronic documents and media); Smith v. Executive Custom Homes, Inc., 209 P.3d 1175, 1177-78 (Colo.App. 2009) (referencing electronic documents discovered in case), rev d on other grounds, 230 P.3d 1186 (Colo. 2010). 5. See in re Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002) ( When a Colorado Rule is similar to a Federal Rule of Civil Procedure, we may look to federal authority for guidance in construing the Colorado rule. ); Wenz v. Nat l Westminster Bank, PLC, 91 P.3d 467, 469 (Colo.App. 2004). Federal courts have taken the lead on e-discovery issues and the Advisory Committee for the federal rules several years ago revised a number of rules dealing specifically with e-discovery. For a summary of those changes to the Federal Rules, see Lipinsky de Orlov and Roberts, The Federal Rules of Civil Procedure: Electronic Discovery Amendments, 35 The Colorado

Lawyer 33 (Nov. 2006) (discussing changes to F.R.C.P. 16(b), 26(a)(1)(B), 26(b)(2)(B), 26(b)(5), 26(f), 33, 34, 37, and 45, and Form 35). 6. See Zubulake I, supra note 2; Zubulake II, supra note 2; Zubulake III, supra note 2; Zubulake IV, supra note 2; Zubulake V, supra note 2. 7. See Anderson and Barkley, The Brave New World of E- Discovery Part I, 36 The Colorado Lawyer 83 (Aug. 2007) (discussing obligation imposed prior to litigation and at the start of the case ); Barkley and Anderson, The Brave New World of E-Discovery Part II, 36 The Colorado Lawyer 43 (Sept. 2007) (analyzing obligations imposed in the later stages of litigation ). 8. Zubulake I, supra note 2 at 317. 9. Id. at 322. 10. See Zubulake II, supra note 2 at 290 (ruling on whether the plaintiff could have access to a sealed deposition transcript). 11. Zubulake III, supra note 2 at 284-89. 12. See Zubulake IV, supra note 2 at 216, 218. 13. See Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., No. 07-cv-01379-WYD-CBS, 2009 WL 1328483 at *5 (D.Colo. May 12, 2009), quoting Zubulake IV on when obligation to preserve arises); Cache la Poudre Feeds, LLC v. Land O Lakes, Inc., 244 F.R.D. 614, 620-21 and n.6 (D.Colo. 2007) (same). 14. Zubulake IV, supra note 2 at 219-21. 15. Zubulake V, supra note 2 at 424. 16. Id. at 439-40. See also Cache la Poudre Feeds, supra note 13 at 617-18 (plaintiff, relying on Zubulake IV, arguing that defendant had committed discovery violations). 17. Zubulake I has been cited in ninety reported cases and 686 law reviews, journal articles, and secondary sources; Zubulake III, thirty-eight and 415, respectively; Zubulake IV, 146 and 563, respectively; and

Zubulake V, seventy-two and 559, respectively. These figures were derived from keyciting the cases in Westlaw on April 28, 2010. 18. Pension Committee, supra note 1 at 461. 19. There were ninety-six plaintiffs in the case, of which thirteen faced sanctions for their negligent or grossly negligent failures to preserve and collect e-discovery. Id. at 462 and n.3. 20. Id. at 462. 21. Id. at 472-73. 22. Id. at 473. 23. See id. at 474, citing 15 U.S.C. 77z-1(b)(1) and 78u- 4(b)(3)(B). 24. Id. 25. Id. 26. Id. at 462-63. 27. Id. at 474. 28. Id. at 474-75. 29. Id. at 475. 30. Id. 31. Id. at 463. 32. Id. 33. Id. at 466. 34. Id. 35. Id. 36. Id. at 475 ( It is unreasonable to assume that the remaining plaintiffs all sophisticated investors were unaware of the impending [hedge funds ] collapse while other investors were filing suit and retaining counsel. Accordingly, each plaintiff was under a duty to preserve at that time. ). 37. Id. at 463. 38. Id. at 464.

39. Id., quoting Prosser & Keeton on Torts 34 at 211-12. 40. Id., quoting Prosser & Keeton on Torts 34 at 213. 41. Id. 42. Id. 43. Id. 44. Id. at 464-65. 45. Id. at 465. 46. Id. 47. Id. at 471. 48. Id. at 477. 49. Id. at 466. 50. Id. 51. Id. at 467. 52. Id. at 475-76. 53. Id. at 476. 54. Id. 55. Id. at 467. 56. Id. at 467-68. 57. Id. at 467. 58. Id. 59. Id. at 467. 60. Id. at 469. 61. Id. 62. Id. 63. Id. 64. Id. 65. Id. 66. Id. at 496-97. 67. Id. at 497. 68. Id.

69. Id. at 470, 478, 479-80, 496-97. 70. Id. 71. Id. at 468. 72. Id. at 468-69. 73. Id. at 479-80, 496-97. 74. Id. at 478-79. 75. Id. at 496-97. 76. Medcorp, Inc. v. Pinpoint Techs., Inc., No. 08-cv-00867-MSK- KLM, 2010 WL 2500301 at *2 (D.Colo. June 15, 2010). 77. Rimkus Consulting Group, Inc. v. Cammarata, No. H-07-0405, 2010 WL 645253 at *4 (S.D.Tex. Feb. 19, 2010). 78. Webb v. CBS Broad., Inc., No. 08 C 6241, 2010 WL 2104179 at *6 (N.D.Ill. May 25, 2010). See also Simon et al., Pension Committee Decision Goes Deeper on Document Retention, Collection and Production: Six Years After Zubulake, N.Y.L.J. S4 (March 22, 2010) (stating that Judge Scheindlin s most recent word on e-discovery thus deserves careful attention, as it will likely shape the standard for compliance with preservation and production obligations ). 79. Pension Committee, supra note 1 at 464. 80. Id. at 471 and n.56. 81. Id. 82. In re Global Technovations, Inc., No. 02-40447, 2010 WL 2671706 at *37 (Bankr.E.D.Mich. July 2, 2010).