Any reasonable analysis of the development of electronic discovery case law includes a discussion of Southern District of New York Judge Shira Scheindlin’s Zubulake decisions1 and, more recently, her decision in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec.,2 self-titled “Zubulake Revisited,” in which Judge Sheindlin further elaborated on the scope of a party’s discovery obligations to preserve and produce electronically stored information (ESI). The precedents established in the Zubulake cases and its progeny remain as guiding principles concerning the scope of a party’s preservation obligations with respect to ESI, the implementation of and compliance with litigation holds, the ability of a party to shift the costs of discovery to the other party, and sanctions for a party’s, or his or her counsel’s, failure to comply with the foregoing discovery obligations.
Until earlier this year, however, it remained uncertain whether some or all of the rules established in Zubulake, which applied the Federal Rules of Civil Procedure, would apply to litigants in New York state courts. Since no state appellate court had adopted Zubulake in whole or in part, its applicability remained unclear until two decisions by the Appellate Division, First Department, in early 2012. In January’s VOOM HD Holdings v. EchoStar Satellite, 2012 N.Y. Slip Op. 00658, 2012 WL 265833 (1st Dept. Jan. 31, 2012), the First Department explicitly adopted the Zubulake standards to a party’s obligation to implement a litigation hold. And, in February’s U.S. Bank National Association v. GreenPoint Mortgage Funding Inc., 2012 NY Slip Op 1515, 2012 N.Y. App. Div. LEXIS 1487, at *1 (1st Dept. Feb. 28, 2012), the First Department, “persuaded that Zubulake should be the rule in this Department,” applied Zubulake to hold that the cost of production of ESI and other discovery must generally be borne by the producing party, thus resolving an important unsettled issue among New York state courts.
‘VOOM’
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