New York Appellate Court Confirms “Reasonable Anticipation of Litigation” in ESI Preservation Trigger

February 3, 2012

For many years litigants in U.S. federal courts and many state courts have been keenly aware that steps must be taken to preserve email and other electronically stored information (ESI) as soon as there is reasonable anticipation of litigation or a governmental investigation.

Until now, no New York state appellate court had weighed in on this issue. On January 31, 2012, however, New York’s Appellate Division, First Department (serving Manhattan and the Bronx) held in Voom HD Holdings LLC v. EchoStar Satellite LLC that 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.

Although this is only a decision from an intermediate New York State appellate court, it is binding on all New York courts unless or until another New York intermediate appellate court or the state’s highest court holds otherwise. This holding may thus potentially affect every case pending in New York.

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Thomas W. Tobin

Partner-<?xml:namespace prefix = st1 />New York



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