Recent Decisions Bring a Range of Lessons for Clients, Attorneys

, New York Law Journal

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Mark Berman
Mark Berman

Since the summer, New York courts have issued a number of decisions that provide real practical guidance to clients, as well as to their attorneys, concerning the preservation, production and use of electronically stored information (ESI). The decisions below highlight certain critical concepts that a client, whether sophisticated or not, and her lawyer need to understand.

• Litigation holds to preserve relevant ESI need to be issued and ideally should be in writing.

• Written communication seeking to preserve ESI should be sent to the producing entity as soon as practicable.

• A statute or regulation may govern how long ESI is required to be maintained.

• "Possession, custody or control" is a fluid concept when dealing with ESI.

• The absence of ESI may be insufficient to demonstrate the requisite prejudice to obtain a spoliation sanction.

• The more critical missing ESI is to prove a party's case increases the severity of a potential spoliation sanction.

• Expectation of privacy to private emails sent through a private email account relating to business is a fact-driven inquiry.

• A refusal to produce relevant social media postings could result in the imposition of sanctions and an award of attorney's fees.

Written Litigation Hold Not Required. In Roberts v. Corwin,1 a legal malpractice action, the motion court held that the failure to issue a litigation hold did not warrant the imposition of a spoliation sanction. Quoting from the First Department's decision in VOOM HD Holdings v. EchoStar Satellite,2 as to standard against which a spoliation charge needs to be analyzed, the court, in denying sanctions, noted that, while the party did not provide the requested emails, they were eventually produced by the nonparty law firm and the party did not have a "history of willful non-compliance" with discovery orders. The court noted that:

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