In two decisions issued, respectively, at the end of January and February, New York’s Appellate Division, First Department, in effect, “federalized” the scope of a party’s duties in the electronic discovery context—duties to preserve electronically stored information (ESI), to suspend routine document retention/destruction practices, to collect and produce electronic documents, records and data in a litigant’s possession, custody or control, and to incur the costs of doing so, subject to the potential of later court intervention when those costs prove to be excessive or oppressive. On Jan. 31 the court issued its decision in Voom HD Holdings LLC v. EchoStar Satellite LLC,1 holding that major aspects of electronic discovery practice set out in two federal district court decisions—one called Zubulake,2 and the other called Pension Committee3—should provide the preservation and disclosure standards in New York state courts.

On Feb. 28, the appellate court issued its decision in U.S. Bank N.A. v. GreenPoint Mtge. Funding Inc.,4 determining which party, the requester or the producer, should incur the cost of searching for, retrieving and producing ESI requested in the discovery process. Consistent with the court’s adoption in Voom of the Zubulake standards for handling ESI preservation and disclosure, the First Department in U.S. Bank decided that Zubulake also “should be the rule in this Department,” requiring the producing party to bear the costs of ESI production, subject to possible relief, in the court’s discretion, following a “proper motion by the producing party.”

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