Hi Carol,
This decision sent me back a few years as I recall reading the Zubulake
rulings in your records management class at IU. From those readings, I
remember noting how Judge Scheindlin grew increasingly frustrated at UBS
Warburg for their continual disregard of her orders. It appears with this
recent ruling that she continues to have zero tolerance for those
organizations that do not take the discovery process seriously.

Overall, I honestly do not think there is anything ground-breaking about
this ruling, especially when compared to her Zubulake decisions. In fact,
this really isn't a reflection Zubulake, though she occasionally refers to
them (more out of frustration that the plaintiff's counsel did not learn
anything from them). Instead, she provides an excellent summary and analysis
of a party's duty to preserve information, litigation holds, and the
different types and degrees of sanctions that a party may face when failing
to fulfill discovery orders (probably one of the most thorough examinations,
or discussions, I have read of the matters). Besides this, the ruling is
mostly her rationale for dismissing the defendant's request for original
motion's dismissal and an explanation for the sanctions she issued, which
should not be considered that big of a surprise.

One final comment/observation. In the opinion, Scheindlin discusses the
actions that each of the 13 different plaintiffs took when facing discovery
requests from the defendants. I get the impression that none of the 13
plaintiffs relied on their records managers (if they had them) for
assistance to help identify, preserve, and retrieve possible relevant
information. The way that Scheindlin issued the sanctions (slapping 6 with
being "grossly negligent" and 7 with being just "negligent" in their
discovery efforts -- the former coming with harsher penalties than the
latter), I think records managers could have made a world of difference for
these companies and helped them avoid some of the penalties they now face. 

Bottom line: if you head an organization and want to try to cheat the
discovery process (or, at the very least, be oblivious to it), you better
not be located in New York and have Scheindlin preside over your case!

Your thoughts or comments?

All the best,
Donald Force
Ph.D. Student
School of Library, Archives, and Information Studies
University of British Columbia
Vancouver, BC
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