Matthew Nelson, Esq., EMC eDiscovery Expert

Does the Pension Committee Amended Opinion and Order Go Far Enough?

The Pension Committee Blog Series

On January 1, 2010, Judge Scheindlin re-established her ability to captivate legal audiences by authoring an opinion that struck fear into the hearts of many litigators and the parties they represent.

Dubbed “Zubulake Revisited: Six Years Later”, the Pension Committee decision serves as the “snooze button” for those practitioners who may have slept through the original eDiscovery “wake up call” sounded by Judge Scheindlin in her oft quoted Zubulake line of decisions.

Not surprisingly, opinions designed to offer clarity regarding a controversial subject such as electronic discovery, are destined to have both supporters and critics.  What is surprising, is that Judge Scheindlin responded to many critics quickly by issuing an amended Pension Committee Order and Opinion on January 15, 2010, to clear up language that could be characterized as confusing at best and inconsistent with previous case law at worst.

The Amended Order primarily clarifies language that could lead one to believe that a duty to preserve and possibly search backup tapes that relate to “key players” always exists.  The Amended Order clarifies the issue in a number of areas, but cautionary footnote number 99 arguably frames the issue best:

“I am not requiring that all backup tapes must be preserved.  Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved.  When accessible data satisfies the requirement to search for and produce relevant information, there is no need to save or search backup tapes.” Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. at 42.

Footnote 99 is a potential trap for the unwary because its apparent simplicity could lead some practitioners to take backup tape preservation less seriously.  Does Footnote 99 and the rest of the Amended Pension Committee Opinion and Order go far enough in clarifying the tricky backup tape issue that gives so many organizations headaches?

Join our discussion and make your opinion(s) known, as we probe the case’s lingering questions and foreboding implications in The Pension Committee Blog Series.