CLE – Lessons Learned from Morgan Stanley, Zubulake, and Philip Morris
How to Avoid Being on the Wrong End of Spoliation Sanctions
Recently, several high profile cases have shed a distressing light on what can happen when a company fails to
properly handle electronic discovery issues. In United States v. Philip Morris, the big tobacco company was sanctioned
$2.75 million and had an expert precluded from testifying due to significant electronic discovery abuses. Next came a
$29.3 million wrongful termination verdict in Zubulake v. UBS Warburg LLC, after the plaintiff was granted a spoliation
inference against UBS due to their failure to preserve critical emails and backup tapes.
More recently, Morgan Stanley dwarfed these previous cases by being on the wrong end of a nearly $1.5 billion jury verdict.
They were rendered “defenseless” after the trial court entered a default judgment in the Plaintiff’s fraud claim due to
Morgan Stanley’s repeated electronic discovery abuses.
In the CLE, we will cover a range of topics including:
- Ethical implications of the discovery “certification” process
- How to conduct technical due diligence to avoid making unintentional misrepresentations
- When and how to utilize third-party experts in electronic discovery
- What “best practices” are associated with monitoring compliance with litigation “hold” practices
- What type of “compliance” activities are required by Zubulake and what happens if counsel doesn’t comply
- Creation of prediscovery preservation and production protocols
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