In what is sure to be a much talked about, written about, and cited opinion, on January 11 Judge Shira Scheindlin granted sanctions against 13 plaintiffs for failing to meet their discovery obligations, beginning with litigation holds. Judge Scheindlin dubbed the opinion “Zubulake Revisited: Six Years Later,” and cited gross negligence for failure to, “take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated.”

Judge Scheindlin noted in her opinion, which supports the precedent-setting 2003 opinion she wrote in Zubulake vs. UBS Warburg, that the courts do not expect perfection, but, “By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.”

The sanctions came in response to the plaintiff’s lack of effort in enacting litigation holds, including the failure to procure documents and the failure to stop the destruction of information in the case of The Pension Committee of The University of Montreal Pension Plan vs. Banc of America Securities LLC.

It is critical for companies to be able to quickly enact a litigation hold order, accurately identify likely custodians, and have complete assurance that the hold reach the intended recipients to protect companies from these types of sanctions. This expectation was set with the Zubulake opinion, and the recent ruling reinforces that companies must have a solid hold management system.