A recent Manhattan Supreme Court, Commercial Division, decision, Einstein v. 357, LLC,[FOOTNOTE 1] addressed the need to properly preserve and implement a “litigation hold” of e-mails. This decision, like the one in Ahroner v. Israel Discount Bank of New York,[FOOTNOTE 2] from last year,[FOOTNOTE 3] should remind counsel of the drastic perils, including the issuance of an adverse finding or preclusion order, that could result from not being aware of or not fully understanding a client’s policies regarding e-mail retention and storage, and not ensuring that responsive e-mails are properly searched for and appropriately produced.
On the other hand, not every matter is ripe for e-discovery, and the decision in Kaiser v. Raoul’s Rest. Corp.,[FOOTNOTE 4] is illustrative of the fact that one still needs to sufficiently justify a request for e-discovery, and that overbroad demands will not be countenanced.
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