Latest e-Discovery News

This article is simply just a brief update on the latest on-goings in the legal world pertaining to e-Discovery.
Lately, New York’s most consequential intermediate appellate court adopted the widespread “Zubulake standard” for determining when defendants must begin to preserve electronically stored information. The state Appellate Division, First Department, agreed with a 2004 ruling, which held that defendants must act to preserve e-Discovery once they expect that they will be a party to the process of litigation. In the most recent of cases, the First Department upheld a Manhattan State Supreme Court spoliation sanction against EchoStar Satellite for failing to take adequate steps to maintain emails and other electronic information when contractual disputes with the content provider Voom HD Holdings broke out.
With a strong argument that the “Zubulake” standard has been widely adopted by courts in all four federal districts of the state and courts throughout the entire country, the basis of the argument is structured around the fact that the standard‘s reasonable anticipation trigger for preservation has been widely followed.
Without much comment, the appellate panel rejected the arguments just based on the simple fact that the “Zubulake” standard is vague and unworkable. The First Department, perhaps swayed by EchoStar’s troubling record of discovery violations, said that adopting a standard of requiring e-discovery preservation only when a defendant is served with notice of litigation ignores the reality of negotiating tactics.
However, not only the lawyer of EchoStar the only ones calling for refinement of the Zubulake “reasonable anticipation of litigation” standard. The current state of e-Discoveryobligations is such that the discovery subcommittee of the US Judicial Conference’s Advisory Committee on Civil Rules is divided between the two.
Corporate defendants are staggering under the cost of preserving evidence in matters in which they have not been sued for yet. In recent letters to the discovery subcommittee, Microsoft reported that two-thirds of matters in which it has imposed litigation holds to retain electronically-stored information are not yet in litigation.
Last September the Judicial Conference’s discovery subcommittee invited corporate counsel and plaintiffs’ lawyers to a conference on e-Discovery preservations and sanctions in Dallas. One suggested option called for defendants to retain electronically stored information only in the event of a specific trigger, such as a demand letter, a notice of litigation, or a notice of a government investigation. Another one would be that the looser “reasonable expectation of litigation” standard, though there’s also debate over whether defendants should face sanctions under that standard as long as they acted in good faith.
Hence, that leaves a lot of time for the First Department’s new standards to slowly take root in New York, and for “Zubulake” to spread to other state courts as well. However, if state judges are going to look to the federal judiciary for guidance on e-Discovery, they should at least be prepared for the many challenges that lie ahead for them.