Just about every practicing litigator has a story about electronically stored information, or ESI: how it won the case or lost the case or turned up or disappeared. It's fair to say that electronic discovery has entirely transformed litigation over the last 20 years and there is no shortage of court opinions and commentary on the subject. In the federal courts, a series of opinions written in 2003 and 2004 by Judge Shira A. Scheindlin in Zubulake v. UBS Warburg¹ planted the seed that has grown into the modern ESI discovery regime. Specifically, these opinions focused not only on the parties' obligations to produce ESI, but to preserve it—even before litigation begins.

Since Zubulake, numerous courts have addressed how the discovery rules—which are general and apply to all types of materials—specifically apply to ESI. These opinions address when the obligation to preserve arises, what must be preserved, and when and how ESI must be searched and produced. As the law has developed, it has become clear that the obligation to preserve and produce ESI is broad, and a restrictive definition of ESI (email and electronic documents) is insufficient. ESI in the modern litigation landscape may include text messages, instant messages, voicemail, digital video, audio and images, and even social media postings. It may also include the metadata associated with those files and the media on which they reside, if that information is relevant to the case. An entire industry of ESI management products and consultants has sprouted and flourished in recent years to comply with the requirements of ESI preservation and production. But even now, a dozen years after Zubulake, new questions continue to arise.

In Dorchester Financial Holdings v. Banco BRJ S.A.,² the litigants recently presented the court with a question of first impression, at least in the Southern District of New York: May a litigant dispose of a hard drive that might contain relevant, discoverable information if that hard drive has “crashed?” If not, what is the appropriate sanction for doing so?