Judge Scheindlin, who handed down several important opinions in a case entitled Zubulake vs. UBS Warburg, has sanctioned 13 plantiffs for improperly preserving ESI.  These sanctions were handed down despite the litigants acting in good faith – they had simply failed to preserve records from employees who may have been related to the litigation.  This action is called a litigation hold, and usually involves the preservation of data as soon as the party knows they may be subject to litigation.

The judge also differentiated between negligence and willful misconduct, claiming that only in cases of willful misconduct was the offending party required to prove that their negligence did not harm the opposing party.

This case sets an important precedent for future parties, and possibly lays some groundwork that other judges will be able to follow.  When it comes to ediscovery spoliation and tampering, the courts will not take this issue lightly.

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