It looks as if we have a rebuttal to Scheindlin's landmark e-discovery opinion, Pension Committee v. Banc of Montreal. In Rimkus Consulting Group, Inc. v. Cammarata, Civil Action No. H-07-0405, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010), Judge Lee Rosenthal doesn't contradict legal teams' duty to preserve, but does offer another view. To sum up:
"The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the Pension Committee approach. And to the extent sanctions are based on inherent power, the Supreme Court's decision in Chambers may also require a degree of culpability greater than negligence."
Rosenthal is the current chair of the Federal Rules Advisory Committee's Committee on Rules of Practice and Procedure and was the chair of the Federal Rules Advisory Committee when the 2006 FRCP amendments were developed and enacted.
A great blog post on the case can be found at EDD Update.
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Hi Sarah--
ReplyDeletea one-rail bank shot from Eve to Legal GRC seems to mean that you work in... products liability? E-discovery is a remarkable idea, new to me and probably also to Peggy, who usually asks for things like personal bank accounts, pay stubs etc.--things that an e-discovery search wouldn't find. (It would be interesting to speculate about whether this might change in the next few years.)
Hi John! I forgot that I had this blog, and am very sad that I missed this comment. I miss your emails and blog comments, and hope that you or Peggy see this comment and will get in touch.
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