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Judge Scheindlin Gives Pension Committee a Minor Tune-Up

For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a bright line that requires litigants to issue legal holds in a written form and addresses other points relating to document preservation.

Nothing major has changed when last week, the Judge made a couple of tweaks to her opinion in an amendment dated May 28, 2010. We owe a hat tip to Ralph Losey for posting his update about Judge Scheindlin’s amendment on his e-Discovery Team blog. Here is the amendment in its entirety:

The Amended Opinion and Order filed January 15, 2010 is hereby corrected as follows:

At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

These tweaks tone down a couple of specific points that had caused polemics to claim that Judge Scheindlin had “gone too far.” In summary, the changes include:

Clarifying that written legal holds need only be issued to “key players” rather than all employees; and
Failure to obtain records from key players “could constitute negligence” rather than is “likely” to be deemed negligence.

With this one-sentence change, Judge Scheindlin updated some language that likely didn’t meet her precise meaning. We applaud the Judge for continuing to review the Pension Committee’s language and ensure that it – to borrow some language from her opinion – “means what it says.”

Does This Amendment Change Anything?

Not really. In practice, the focus of reasonable and good faith preservation efforts have always focused on the key players, or those people who have knowledge and involvement of the issues at hand during the litigation.

It is unreasonable to expect that the Courts would have expected companies to consistently issue holds to all employees every time a “trigger event” occurred. This has been the reality since Zubulake and most likely this was simply tightening up one phrase in a weighty 89-page opinion.