The New York Appellate Division, 1st Department, recently issued two decisions that provide critical guidance as to when electronically stored information must be preserved and the legal ramifications of the failure to do so. In addition, a recent trial court decision found that an assertion that there was no additional ESI to be produced needed to be supported by an expert affidavit indicating what computer systems were searched, when the search occurred, what types of ESI was searched for, and what search was performed.
The 1st Department in VOOM HD Holdings LLC v. EchoStar Satellite LLC[FOOTNOTE 1] held that "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents," including ESI, and this is the case "whether the organization is the initiator or the target of the litigation."[FOOTNOTE 2] Such "hold" must suspend a system's automatic-deletion function, and otherwise preserve emails. The court held that such a rule provides "litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered."
SUSPEND AUTOMATIC DELETION
In Voom, the defendant had not implemented a litigation hold on ESI until after litigation had actually been commenced, and the "hold" did not suspend defendant's automatic deletion of emails, which automatically and permanently purged, after seven days, any emails sent and deleted by an employee from defendant's computer servers. It was not, however, until four months after the commencement of the lawsuit, and nearly one year after defendant was on notice of anticipated litigation, that defendant suspended the automatic deletion of relevant emails from its servers.
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By: Mark A. Berman