Spoliation of Electronic Data: The Appellate Division (1st Dep’t) Embraces and Adopts Zubulake Decision

In a recent decision the Appellate Division, First Department firmly embraced and adopted the Federal Zubulake Decision.  In a unanimous decision, the Court found that the defendant Echostar, a provider of satellite TV services, was evading its “litigation hold” obligation by failing to suspend its computers’ automatic erasure of data, including emails, that might be relevant to its dispute with the plaintiff Voom, a television programmer and one of its customers.  The record is so strong against EchoStar that the court charged Echostar with gross negligence and even bad faith.  Based on the finding, the court awarded Voom an “adverse inference” charge.  See Voom HD Holdings LLC v. EchoStar Sattelite LLC, 2012 WL 265833 (Jan. 31, 2012).

In it’s decision the court recites the standard for preservation set forth in Zubulake:  “[o]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.”  See Zubulake v. UBS Warburg, 220 F.R.D. 212 (SDNY).

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