Litigation Hold for eDiscovery – Gross Negligence Standard Rejected


A recent ruling overturned the 2010 case where Judge Shira Scheindlin concluded that failing to issue a litigation hold was per se gross negligence. The Second Circuit Court of Appeals on July 10, 2012 ruled in Chin v. Port Authority of New York New Jersey that failure to issue a litigation hold is not per se gross negligence. Further the court said that each case should be evaluated “on a case-by-case approach to the failure to produce relevant evidence” rather than assume negligence.

Judge Scheindlin’s ruling of per se gross negligence for failure to issue a litigation hold in Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs. (Pension Committee) set an unbelievablely high standard which ultimately has been adopted by few courts.

Before eDiscovery, parties in litigation always had a duty to collect and protect potential relevant paper evidence, however eDiscovery has made things more complicated since 99% of all information is electronic.

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