A recent Manhattan Supreme Court, Commercial Division, decision, Einstein v. 357, LLC,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,2 from last year,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.,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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