“The analysis of ’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball

We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to Action for Effective Legal Holds” which was written by Brad Harris and John Jablonski. The analysis interprets the opinion and its practical effect on the duty to preserve evidence in the United States and the contemporary standard for litigation hold processes developed by courts over the last few years. The 14-page paper, part of the Legal Hold Pro™ Signature Series, is available immediately at no cost at www.legalholdpro.com/scheindlin.

On January 11, 2010, Judge Shira Scheindlin issued an opinion in The Pension Committee v. Banc of America Securities case that strongly affirms the need for organizations to issue written litigation hold notices as part of a robust litigation hold processes. Following Judge Scheindlin’s seminal Zubulake opinions in 2004, this blockbuster 89-page opinion revisits many of the issues around legal preservation. The opinion concentrates on the weaknesses of the legal hold efforts of the plaintiffs in the $550 million securities litigation. Among the key rulings by Judge Scheindlin is that “the failure to issue a written hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” (p.36)

“This is clearly a landmark opinion and since it was issued I have been receiving a lot of calls seeking an interpretation of the opinion,” said Jablonski, co-author of 7 Steps for Legal Holds of ESI and Other Documents (ARMA, 2009). “We worked extremely hard over the last two weeks to conduct a thorough analysis which we believe will serve as a guidepost to help corporations and others understand the real world implications of The Pension Committee opinion. The report includes a checklist of legal hold duties created or discussed by the opinion and recent cases that corporations and their lawyers can review to help meet the litigation hold expectations of the modern court.”

“John and I wanted to go beyond a play-by-play of Judge Scheindlin’s opinion and illustrate how this case will impact in-house legal teams and outside counsel,” said Harris. “Judge Scheindlin effectively redefined the ‘contemporary standard’ of litigation holds so we felt it was imperative to communicate that to the legal community immediately.”

Download a complimentary copy of “The Pension Committee Opinion: Judge Scheindlin’s Call to Action for Effective Legal Holds” white paper at www.legalholdpro.com/scheindlin.

About the Authors:

  • Brad Harris, Director of Legal Products, Zapproved Inc., is the author of the just published white paper “12 Myths about Legal Holds.” Mr. Harris is an e-discovery expert who has focused on the area of legal hold notification and compliance for the last five years, advising organizations and presenting regularly on the topic. He is a frequent author and speaker on e-discovery issues, including articles in Corporate Counsel, Metropolitan Corporate Counsel and KMWorld and presentations at leading industry events such as Legal Tech New York.
  • John Jablonski, Partner at Goldberg Segalla LLP, is a leading presenter about techniques and best practices involving litigation preservation holds. He is a co-author of “7 Steps for Legal Holds of ESI and Other Documents” (ARMA 2009) and also writes the Legal Holds and Trigger Events blog. He is also a regular contributor to Law Technology News, Law.com and a frequent speaker at legal industry events.

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