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The 2nd Circuit Rejects Judge Scheindlin’s Position That A Failure To Issue A Written Legal Hold Is Gross Negligence Per Se Does the failure to issue a written legal hold result in a "gross negligence per se" sanction and adverse inference instruction? According to the 2nd circuit, not necessarily. Judge Scheindlin's S.D.N.Y. holding that a failure to issue a written legal hold to be dispositive of a finding of gross negligence per se has been soundly rejected by the 2nd circuit. Rather than signal an erosion or relaxation of the duty to preserve requirements, the Chin v. Port Auth holding instead shows that courts have evolved a higher degree of sophistication to discern facts and apply discretion on a case by case basis and that a failure to issue a written legal hold is but one of the factors to be considered when levying sanctions.
By Richard E. Davis, Nov 11, 2012 View all resources