The cost of finding and producing both electronically stored information and physical documents in response to discovery requests must initially fall on the party responding to the request, though courts may shift that cost at their discretion, a unanimous panel of the Appellate Division, 1st Department, has ruled.
The Feb. 28 decision in U.S. Bank National Association v. GreenPoint Mortgage Funding Inc., 600352/09, signed by Justice Rolando T. Acosta (See Profile), is the second decision by the 1st Department this year adopting e-discovery standards set forth by Southern District Judge Shira Scheindlin in 2003 in Zubulake v. UBS Warburg LLC, 220 FRD 212.
In the first such decision, Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, the appellate court adopted the Zubulake standard in the context of spoliation of electronic data (NYLJ, Feb. 1). In the Feb. 28 ruling, Justice Acosta wrote that the court was "persuaded that Zubulake should be the rule in this Department."
Justices David B. Saxe, John W. Sweeny Jr., Leland G. DeGrasse, and Sheila Abdus-Salaam concurred.
The panel's ruling reversed two decisions by Manhattan Supreme Court Justice Bernard J. Fried.
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Source: law.com
By: Brendan Pierson
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