Recently, Judge Shira Schiendlin, a United States District Judge for the Sotuthern District of New York and author of the landmark Zubulake ediscovery opinions, revisited Zubulake and issued another opinion in Committee of Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, (S.D.N.Y. Jan. 15, 2010) which will also play a central role in the future of ediscovery litigation.

In the Pension Committee opinion, Judge Scheindlin set forth what constitutes gross negligence, negligence, and willfulness in the context of ediscovery. In the case, the Court found that failures to issue a litigation hold, to identify all key players and ensure that their electronic and paper records are preserved, to cease deletion of email or to preserve records of former employees that are in the party’s possession, custody and control; and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players if the relevant information maintained by those players is not obtainable from readily accessible sources constitutes gross negligence. Further, “the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.” Finally, the failure to take all appropriate measures to preserve ESI also constitutes negligence.

This decision is particularly troubling for in-house and outside counsel inexperienced with ediscovery matters because monetary sanctions were awarded and an adverse instruction was given despite the fact that the Court recognized that the case did not present “any egregious examples of litigants purposefully destroying evidence” and that counsel acting with “pure heart and an empty head” could still be found negliegnt or grossly negligent..