April 29, 2013 Articles

Written Litigation Holds and Per Se Negligence: An Evolving Law

Since the Pension Committee decision, the rules governing document preservation and spoliation have been in flux

by Paul M. Kessimian and Travis J. McDermott

"In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive.  Courts cannot and do not expect that any party can meet a standard of perfection.  Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party."   Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 456 (S.D.N.Y. 2010) (Scheindlin, J.).

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