The 2nd
Circuit Rejects Judge Scheindlin’s Position That A Failure To Issue A Written
Legal Hold Is Gross Negligence Per Se
In Chin v. Port Auth. of NY, 685
F.3d 135, 162 (2nd Cir. 2012), the court held, contrary to the well
publicized and oft-lauded holding in Pension Comm. of Univ. of Montreal
Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 464–65
(S.D.N.Y.2010), that a failure to issue a written legal hold is not
gross negligence per se and does not result in a requirement that a court issue
an adverse inference instruction against the offending party. What does this
mean for staunch, die-hard advocates of the position that Judge Scheindlin took
in Pension Committee? Arguably, while rejecting the gross negligence per
se standard and some of its implications, the Chin holding does not
throw the baby out with the bath water. Rather than make the failure to issue a
written litigation hold dispositive of a gross negligence per se finding, the Chin
holding stands for the proposition that a failure to issue a written legal hold
is but one of a number of factors that may be considered by a court in
determining whether an adverse inference instruction is warranted. This
softening of the S.D.N.Y.’s position on legal hold issuance does not as a
standard preclude a court from arriving at the conclusion that an adverse
inference instruction is warranted where written legal hold instructions were not
issued. The Chin decision most significantly provides greater judicial latitude
and discretion to consider the effect of other variables and factors before
which either individually or collectively may or may not be ultimately
dispositive of gross negligence per se.
The implications of a failure to act in a fashion consistent with the
duty to preserve potentially relevant information remains the same and opposed
to adopting a bright line approach, it seems that some courts might be willing
to afford counsel more opportunities to argue the evidentiary impact issues
that the actions or inaction of a party has on case before imposing significant
sanctions. The operative question that seems to be distilled with increasing
frequency is, “was the information that was not properly preserved demonstrably
or likely to be relevant?” The 2nd circuit ruling should in no way
be construed as a holding that weakens or undermines this duty in any way.
One message that this holding has for litigants is that courts have evolved
in their level of sophistication and understanding of the substantive issues of
evidence that result from the failure to use best practices to preserve
relevant data. It also suggests that they have the bandwidth look at the issues
on a case-by-case basis before levying a high caliber sanction on a party who
has for one reason or another failed to properly issue a written legal
hold.
Richard E. Davis is the Chief Discovery Solutions
Architect for the U.S.’s premier managed review company, DW Legal Solutions. He
works with corporations and there outside counsel to develop, implement and
manage defensible, scalable and cost effective data solutions management
solutions for litigation, compliance, merger and acquisition related
activities.
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