Despite the ubiquity of electronic discovery issues since the inception of the electronic age, courts historically have provided counsel with little guidance regarding discovery duties and sanctions upon lapse of those duties. Recently, however, a court with substantial experience in dealing with electronic discovery provided the clearest guidance yet regarding sanctions for the spoliation of electronically stored information.

In 2003, Judge Shira Scheindlin in the Southern District of New York established the duty to preserve electronic documents, explained what documents must be retained and broached possible remedies for violations of retention obligations in a series of five Zubulake v. UBS Warburg opinions.1 Still, Judge Scheindlin did not elaborate on spoliation until January 2010 when she expanded on the levels of culpability for specific spoliation acts and corresponding sanctions in The Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec.2 The principles of Pension Committee have been applied in at least one other case and, like the Zubulak decision, will gain the attention of other courts throughout the country. This article summarizes the spoliation standards established in Zubulake IV, reviews the framework delineated in Pension Committee and provides an example of how Pension Committee has been applied.

Zubulake IV Revisited

Zubulake IV, a preeminent case on electronic discovery, defined spoliation as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation” (Zubulake, 216).3 Zubulake IV made clear that “[t]he duty to preserve attache[s] at the time that litigation was reasonably anticipated” (Zubulake, 217). In sum, Zubulake IV held that “[o nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents” (Zubulake, 217). Failure to adequately search for and preserve relevant documents, both paper and electronic, could result in sanctions for spoliation (Zubulake, 212).

Sanctions for spoliation, Judge Scheindlin announced, range from cost shifting to adverse inference jury instructions to dismissing the case in its entirety. Severe sanctions are reserved for the most clearly relevant evidence destroyed with a “culpable state of mind.” However, Zubulake IV provided limited guidance on the concept of a culpable state of mind.