The New York Appellate Division, 1st Department, recently issued two decisions that provide critical guidance as to when electronically stored information must be preserved and the legal ramifications of the failure to do so. In addition, a recent trial court decision found that an assertion that there was no additional ESI to be produced needed to be supported by an expert affidavit indicating what computer systems were searched, when the search occurred, what types of ESI was searched for, and what search was performed.
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