New York's 1st Department Weighs In on ESI Preservation

http://ow.ly/9tUXX

An article by Mark A. Berman posted on the New York Law Journal, and also on law.com on the LTN webpage.

The article discusses two recent cases VOOM HD Holdings LLC v. EchoStar Satellite LLC, and  Scarola Ellis LLP v. Padeh , links to both case opinions are provided in the article.

The cases are recent interpretations of New York State Law, as it relates to obligations requiring preservation of ESI.  In the Voom case suspension of normal document retention practices is the issue, and in the Scorla case, an affidavit from an IT professional was required to state that no further information was in possession of a party.

The Voom case was discusses as follows, "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."  

The article goes on to state, "Accordingly, the 1st Department affirmed the motion court's finding that defendant's "conduct, at a minimum, constituted gross negligence" and that "a negative, or adverse inference against [defendant] at trial was an appropriate sanction, rather than striking [defendant's] answer, since other evidence remained available to [plaintiff], including the business records of [defendant] and the testimony of its employees, to prove [plaintiff's] claims.""

In addition, the article mentions the Scorla case, "the court directed defendant to produce an affidavit from a system administrator or other similar computer systems specialist which stated there were no responsive documents and also detailed the search methods used." In response, defendant produced an affidavit from a computer engineer stating that he found no documents on the internal network or servers. The motion court found the affidavit to be insufficient and directed that a supplemental affidavit be provided by the computer engineer:
explaining which computers and system were searched, the date of the search, what kind and type of search or additional searches if necessary were performed, whether a search was made for other types of electronically stored documents other than emails, whether a search was made for deleted content, and what the origins were of the nine emails attached as exhibits in the opposition to the motion for summary judgment."