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February 2012 Archives

February 9, 2012

New York's First Department Adopts Federal "Zubulake" Standard

New York's First Department, in VOOM HD Holdings LLC v EchoStar Satellite L.L.C.,2012 NY Slip Op 00658, ___ N.Y.S.2d ___, 2012 WL 265833(1st Dept. January 31, 2012), has adopted the federal "Zubulake standard" (Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), otherwise known as "Zubulake IV"), as follows: "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 ... The preservation obligation is not limited simply to avoiding affirmative acts of destruction. Since computer systems generally have automatic deletion features that periodically purge electronic documents such as e-mail, it is necessary for a party facing litigation to take active steps to halt that process . . . Regardless of its nature, a hold must direct an appropriate employee to preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee. The hold should, with as much specificity as possible, describe the ESI at issue, direct that routine destruction policies such as auto-delete functions and rewriting over e-mails cease, and describe the consequences for failure to so preserve electronically stored evidence ... Where a party is a large company, it is insufficient, in implementing such a litigation hold, to vest total discretion in the employee to search and select what the employee deems relevant without the guidance and supervision of counsel." See also, U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc.,2012 NY Slip Op 01515, ___ N.Y.S.2d ___, 2012 WL 612361(1st Dept. February 28, 2012)(adopting Zubulake cost shifting analysis)

The Zubulake standard places a high burden upon in-house and outside lawyers, often requiring them to guess at whether a particular circumstance warrants implementation of litigation holds and to what degree. This issue will no doubt be heading to the New York Court of Appeals for consideration of the steps required by counsel when faced with possible litigation. In the meantime, counsel must review their internal litigation hold policies, protocols, and safeguards.

The NYSBA's Special Committee on Discovery and Case Management in Federal Litigation and the "Faster, Cheaper, Smarter Working Group" are presently considering these issues. The mandate of these committees is to make recommendations as to the need for rules, if any, that, inter alia, address preservation of documents needed for litigation. In doing so, they are reviewing all relevant topics relating to discovery and inspection, including, but not limited to (a) the impact of increasing electronic communications and electronically stored information ("ESI"), (b) the length of time litigation takes, (c) costs, (d) the definition of "relevancy", and (e) appropriate use of court resources.

These NYSBA committees are focusing upon possible amendments to the Federal Rules of Civil Procedure under consideration by the Civil Rules Advisory Committee of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The Standing Committee develops proposed amendments to the Federal Rules of Civil Procedure which may eventually be presented to Congress under the Rules Enabling Act of 1934, 28 U.S.C. ยง 2071, et seq. The Civil Rules Advisory Committee (takes a while to load) is currently studying proposals for federal rules concerning preservation and spoliation.

The lack of a federal rule governing preservation complicates the analysis so that courts are often operating within their inherent authority. Consequently, a divergence has arisen in judicial viewpoints analyzing the concepts of preservation and spoliation, particularly in the area of ESI. An amendment of the Federal Rules of Civil Procedure (Rules 26 and 37) is no doubt necessary to ameliorate this lack of uniformity.

For a recent example of the far-ranging application of Zubulake, see the somewhat harsh decision of the Southern District of New York in Pippins v. KPMG LLP, --- F.R.D. ----, 2012 WL 370321 (S.D.N.Y., February 3, 2012)(also takes a while to load); see also, Monique Da Silva Moore, et al. v. Publicis Groupe and MSL Group, Case 11 Civ. 1279 (ALC)(AJP)(S.D.N.Y., February 24, 2012) (first federal judge to order litigants to use predictive coding in document review).


If you need a quick refresher on e-discovery issues, see the great primer on the subject recently provided by the NYSBA:
"Best Practices In E-Discovery In New York State and Federal Courts"
NYSBA Bar Journal Article on e-Discovery and Cloud Computing.

April 2, 2012:
NYSBA Committee Issues Report on E-Discovery and Proposed Changes to Federal Rules of Civil Procedure

Heath J. Szymczak, Esq.

DISCLAIMER: This site is for general informational purposes only and is not intended to provide legal advice. Please contact an attorney relative to the circumstances of your particular case. The use and receipt of the information offered on this web site is not intended to create, nor does it create, an attorney-client relationship.

February 15, 2012



When: March 7, 2012 from 3:30-5:30 pm (reception to follow 5:30-6:30 pm)

CLE Credits: 2 MCLE (Professional Practice)
(for experienced attorneys, credit not approved for newly admitted attorneys)

Cost: $25.00

"If we win another such battle . . . we will be completely lost"
- King Pyrrhus of Epirus (279 B.C.)

Courts are being asked to do more with less. At the same time, counsel (both inside and outside counsel) are faced with mounting pressures to quickly and cheaply navigate an increasingly complex system of rules, legislation, and decisions, all of which have made litigation riskier and more expensive. A litigant's "day in court" may take months or even years, and may result in a disproportionately large price tag as compared to the relief sought. "Justice delayed" has unexpected (but very real) economic and lost opportunity costs.

The New York State Bar Association will present a unique and exciting opportunity to participate in a dialogue with a panel of federal and state court judges from across Upstate, New York. The panel will discuss the nuts and bolts of litigation (with a focus on commercial litigation) and ways in which it can be made more efficient and cost-effective, including approaches to discovery (including electronic discovery), motion practice, case management, and ADR.

There will be a reception following the discussion. Relevant materials will also be provided. All judges and location participants in all three cities will be connected via live interactive video feed.

The panel will consist of six judges from Syracuse, Rochester and Buffalo (three New York State Commercial Division justices and three federal magistrate judges):

Hon. Deborah H. Karalunas
Justice of the Supreme Court
Onondaga County Supreme Court

Hon. Jeremiah J. McCarthy
United States Magistrate Judge
U.S. District Court, Western District of New York

Hon. John A. Michalek
Justice of the Supreme Court
Erie County Supreme Court

Hon. Marian W. Payson
United States Magistrate Judge
U. S. District Court, Western District of New York

Hon. David E. Peebles
United States Magistrate Judge
U.S. District Court, Northern District of New York

Hon. Matthew Rosenbaum
Justice of the Supreme Court
Monroe County Supreme Court

Mitchell J. Katz, Esq. - Menter, Rudin & Trivelpiece, P.C. (Syracuse) - Program Chair
Sharon M. Porceillo, Esq. - Ward Greenberg Heller & Reidy LLP (Rochester)
Heath J. Szymczak, Esq. - Jaeckle Fleischmann & Mugel, LLP (Buffalo)
David H. Tennant, Esq. - Nixon Peabody LLP - Ex Officio (Chair, Commercial and Federal Litigation Section)

You can attend and participate at any of the following locations:

Onondaga County Courthouse
Room 400
401 Montgomery Street
Syracuse, New York 13202

Hall of Justice
99 Exchange Boulevard
Rochester, NY 14614

Ceremonial Courtroom
Old County Hall
92 Franklin Street, 2d Floor
Buffalo, New York 14202


ONLINE - Buffalo Location
ONLINE - Rochester Location
ONLINE - Syracuse Location


BY FAX to State Bar Service Center re: Streamlining Litigation March 7, 2012 at 518.487.5758. See the fax form for Discounts and Scholarship information. Click here for fax form


EMAIL to sbsc@nysba.org re: Streamlining Litigation March 7, 2012 and include information requested on the fax form

Questions?? Please contact Patricia Johnson, Esq. before 2/17/12 and after 2/26/12 at 518.487.5688

PLEASE NOTE: For security purposes you must RSVP to attend and no one will be admitted to the courthouses after 4:30. Please advise if you are attending the CLE only (3:30-5:30 p.m.) or the CLE and reception (3:30-6:30 p.m.). The $25.00 fee includes the reception.

Accommodations for Persons with Disabilities: NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact Kathy Heider at (518) 487-5500 or kheider@nysba.org.

About February 2012

This page contains all entries posted to Business Torts and Employment Litigation Blog in February 2012. They are listed from oldest to newest.

January 2012 is the previous archive.

March 2012 is the next archive.

Many more can be found on the main index page or by looking through the archives.