The Experts below are selected from a list of 12 Experts worldwide ranked by ideXlab platform

A. Benjamin Spencer - One of the best experts on this subject based on the ideXlab platform.

  • The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court
    Fordham Law Review, 2011
    Co-Authors: A. Benjamin Spencer
    Abstract:

    The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC,1 Judge Shira A. Scheindlin—of the Zubulake v. UBS Warburg LLC2 e-discovery cases— penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty.3 Not long afterwards, Judge Lee H. Rosenthal, Chair of the Judicial Conference Committee on the Rules of Practice and Procedure (the Standing Committee) and former Chair of the Civil Rules Advisory Committee, issued an opinion in Rimkus Consulting Group, Inc. v. Cammarata,4 describing her understanding of many of the same issues touched on in Pension Committee.5 Both of these opinions have come at a time when the legal community is looking for better and more consistent guidance regarding the Preservation Obligations attendant to prospective litigation in the federal courts. Unfortunately, although other courts may draw some guidance from these two opinions, the fact is that variation among district courts and among the circuits will persist as long as policing pre-litigation Preservation Obligations remains largely the product of common law regulation via the inherent power of the courts.6

  • The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court
    2010
    Co-Authors: A. Benjamin Spencer
    Abstract:

    The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not long afterwards, Judge Lee Rosenthal - Chair of the Judicial Conference Committee on the Rules of Practice and Procedure (the Standing Committee) and former Chair of the Civil Rules Advisory Committee - issued an opinion (Rimkus Consulting Group, Inc. v. Cammarata ) describing her understanding of many of the same issues touched on in Pension Committee. Both of these opinions have come at a time when the legal community is looking for better and more consistent guidance regarding the Preservation Obligations attendant to prospective litigation in the federal courts. Unfortunately, although other courts may draw some guidance from these two opinions, the fact is that variation among district courts and among the circuits will persist as long as policing pre-litigation Preservation Obligations remains largely the product of common law regulation via the inherent power of the courts. Given this state of affairs, the time is ripe for a uniform federal approach to the pre-litigation duty to preserve and sanctions for spoliation. After reviewing the existing frameworks for determining the duty to pre-serve and imposing sanctions that prevail among the federal courts, this Article will explore how the Federal Rules of Civil Procedure might be amended to define and enforce pre-action Preservation Obligations more effectively and consistently across jurisdictions.

Gregory I Massing - One of the best experts on this subject based on the ideXlab platform.

David M. Siegel - One of the best experts on this subject based on the ideXlab platform.

Ephraim Unell - One of the best experts on this subject based on the ideXlab platform.

  • Pippins’ Class Trip to the Zubulake Zoo: The Pre-Claim Preservation Obligation
    SSRN Electronic Journal, 2012
    Co-Authors: Ephraim Unell
    Abstract:

    This Article is about the Preservation Obligation. The law imposes a responsibility to preserve relevant evidence on those who possess it. The growth of electronic information has changed the nature and increased the costs of such Preservation. Case law is rapidly evolving in this area and frequently unclear, with significant variation across jurisdictions that adds to the uncertainty and unpredictability businesses and other entities complain of. It is something of a zoo.This Article focuses on the least well understood aspect of the Obligation, that which applies before a discovery request or claim are even filed and its nexus with complex (hence costly) litigation. I look at several common questions about the trigger and scope of the pre-claim duty, using the recent Pippins v. KPMG case to illustrate a number of issues, including those raised by class actions. This Article makes two particular contributions. First, I comprehensively review the caselaw applying the pre-claim Obligation. This review shows that the pre-claim Obligation has been defined in a narrow and consistent fashion by courts. The Obligation is therefore surprisingly clear and easily satisfied, which undermines concerns about large-scale prophylactic pre-litigation Preservation. Second, I survey and evaluate the current debate over changes to the FRCP and other measures to address the problems of Preservation in the age of ESI.This PDF is a draft excerpt from the Article I describe above. Comments are welcome.