The preservation of electronically-stored data and documents, including email communications, when parties anticipate litigation, has been the subject of much debate and many court decisions in the past few years.
The obvious concerns are that parties that anticipate litigation may (a) intentionally destroy such data if it is believed to contain harmful evidence against the business, or (b) accidentally destroy the data, or (c) simply destroy the data as a routine part of their practice to purge certain documents and communications.
Until recently, the New York state courts had not articulated a set standard for when a party must implement an appropriate “hold” in order to avoid the destruction of electronic data and documents, including emails. The Federal courts had done so in 2003 with the notable decision in Zubulake v. UBS Warburg, LLC.
Now, at least one appellate court in New York, the Appellate Division, First Department, has adopted the same standard formulated by the Zubulake court. The court in Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 2012 WL 265833 (1st Dept. 2012) so held this past January 2012.
According the Appellate Division, First Department, now, whenever a party reasonably anticipates litigation, the party must take steps to implement a hold policy on the destruction of the data even if litigation has not commenced, no notice of any claim has been served, or the parties are attempting to negotiate a resolution of the dispute.
