As a follow-up to our previous post on Zubulake Revisited, judge Scheindlin amended her original order. Here is an overview of the main changes :
She replaced <While placing any burden at all on the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the line has to be drawn somewhere lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.> with <If the spoliating party offers proof that there has been no prejudice, the innocent party, of course, may offer evidence to counter that proof. While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a ”gotcha” game rather than a full and fair opportunity to air the merits of a dispute.>.
She added <I note that not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.>.
After <destroyed backup data potentially containing responsive documents of key players>, she added <that were not otherwise available>, thereby drawing the line between reasonably accessible and inaccessible documents based on the proportionality test. She then continued by adding a footnote stating:
A cautionary note with respect to backup tapes is warranted. 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. See Fed. R. Civ. P. 26(b)(2)(B).
She further added <While routine searches of backup tapes are not required, they should be searched when it has been shown that relevant material existed but was not produced, or relevant material should have existed but was not produced. Because both conditions are met, Okabena is required to conduct this search or explain why it is unable to do so.>.
Interestingly, she replaced <Second, that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation were grossly negligent in their failure to preserve the evidence.> with <Second, that if relevant evidence was destroyed after the duty to preserve arose, the loss of such evidence would have been favorable to the Citco Defendants.> and added <This failure resulted from their gross negligence in performing their discovery obligations.>.
You should read all the Zubulake Revisited Amendment as this will likely be the last judgment in that case…
Hat Tip to WortzmanNickle.
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