Tagged: Document Retention

Time For a Bright-Line Preservation Rule?

As was recently reported in the New York Law Journal, one of the issues for discussion at the recent annual meeting of the New York State Bar Association this January was the need for more uniformity, and possibly even a bright-line rule, to govern issues of document preservation. This was the focus of a panel including two New York State Supreme Court justices and three federal judges from the Southern District of New York – District Judge Shira Scheindlin and Magistrate Judges Andrew Peck and James Francis.

Delaware Court of Chancery Adopts ESI Preservation Guidelines

Following the lead of other state courts, Delaware’s Court of Chancery — known for handling of some of the nation’s most complex corporate matters — has adopted guidelines for the preservation of electronically stored information (“ESI”). The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party’s possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice.

New York Courts Address ESI Inconsistencies at State and Federal Level: An Erie Solution?

A panel of New York state and federal judges recently convened to discuss the differing standards between New York state and federal law governing the pre-litigation preservation of ESI and to make recommendations to resolve such inconsistencies. The panel’s findings are reported in the publication, Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in New York State and Federal Courts. The critical issue is determining when a litigant’s duty to preserve ESI is triggered, how that duty is fulfilled, and the potential consequences for breaching the duty. The panel recognized that the disparate treatment that litigants may receive in New York state courts versus federal courts could lead to a great deal of confusion and uncertainty, even for parties that cautiously implement ESI strategies with an eye towards future litigation. For example, the trend in New York federal courts has been in favor of the adoption of per se culpability when determining a litigant’s state of mind. In Zubulake, the court held that once the duty to preserve ESI attached, any destruction of documents would be, at a minimum, negligent. In Pension Committee, the court held that failure to issue a written litigation hold constituted “gross negligence.” State courts, on the other hand, have largely declined to adopt such per se rules, preferring instead to analyze a litigant’s culpability on a case-by-case basis, as the courts did in cases such as Deer Park and Ecor Solutions.

Federal Judge Rules Government Failed to Preserve Text Messages and Orders Adverse Inference Instruction in Criminal Case

On October 21, 2010, in the highly publicized New Jersey government corruption case U.S. v. Suarez, et ano., No. 09-932, 2010 U.S. Dist. LEXIS 112097 (D.N.J.), the Honorable Jose L. Linares, U.S.D.J., held that the FBI had a duty to preserve Short Message Service electronic communications (i.e., text messages) exchanged between its agents and their cooperating witness, Solomon Dwek, during the course of the investigation of defendants Anthony Suarez (mayor of Ridgefield, NJ) and Vincent Tabbachino (former Guttenberg, NJ councilman and police officer). Despite the lack of evidence of bad faith on the part of the government, because the text messages were not preserved, the Court found clear prejudice to defendants and ordered that the appropriate sanction was a “permissive” adverse inference jury instruction.