It is now beyond question that electronically stored information (ESI) has dramatically changed the world of litigation for both parties and the courts. The federal courts have had a significant head-start over the New York state courts in developing detailed and intricate mandates for preserving and producing ESI and remedies for failing to follow those directives, with years of developing case law.
The issues have now finally made their way up to the New York Court of Appeals in the case of Pegasus Aviation I v. Varig Logistica, 2015 N.Y. Slip Op. 09187 (Dec. 15, 2015). New York’s highest court was thereby given an opportunity to take a careful look at the issues and promulgate instructive and helpful rules for the lower courts grappling with these perplexing questions. Unfortunately, the Court of Appeals squandered the opportunity, and simply accepted the standards originated in the federal courts in New York that have been expressly superseded by the new Federal Rules of Civil Procedure (FRCP) and that are likely to cause further confusion and regrettable results.
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