With the recent adoption by New York of an official standard for electronic document preservation, the legal world may be standing at the edge of a new precedent for e-discovery.
Origins of Zubulake
The proper procedure for e-discovery document preservation originates with the 2003 case, Zubulake v. UBS Warburg LLC, which took place in a New York district. The court ruled that any party which anticipates litigation must immediately cease its usual document destruction policy in order to preserve possible evidence. This ruling specifically addresses e-discovery such as emails and other virtual documentation.
Justice Sallie Manzanet-Daniels wrote that "the Zubulake standard is harmonious with New York precedent in the traditional discovery context, and provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context" in reference to the ruling, and support of adopting this standard, which has since been implemented across all four districts of New York.
Recent Appeal Ruling
Manhattan Supreme Court Justice Richard Lowe III upheld the standard in a recent appeal, granting it more strength. His ruling confirmed findings from a lower court against EchoStar Satellite. The company in question had been sanctioned for deleting relevant emails, even after the initiation of a lawsuit against the company by VOOM HD Holdings, a former subsidiary of Cablevision.
An email from Orin Snyder, a lawyer for Voom said in an email that the “ruling confirms that EchoStar destroyed evidence in blatant violation of the law and will now be held accountable for its misconduct."
This decision is also an adverse inference jury instruction; the jury is free to assume that the emails were deliberately destroyed, and that the ediscovery, if preserved, would have provided evidence in favor for Voom. The court wrote that they agreed “with the motion court that an adverse inference was warranted because EchoStar's spoliation of electronic evidence was the result of gross negligence at the very least."
A national group, the Lawyers for Civil Justice, argued in favor of EchoStar. Both insisted that the Zubulake standard is "vague and unworkable because it provides no guideline for what 'reasonably anticipated' means" and that it should not be enforced unless a lawsuit will definitively be filed. The reasonable anticipation standard could be considered subjective; it also argued that changing potential ediscovery destruction methods would put an unfair cost burden on companies who would now be forced to retain excessive data.
The First Department panel disagreed, stating that “requiring actual litigation or notice of a specific claim ignores the reality of how business relationships disintegrate." The case in question specifically resulted over a contract dispute between companies. The court wrote that EchoStar should have realized that attempting to void a business agreement was certainly likely grounds for a possible suit to be brought. In addition, emails were continuously being deleted even months after the initial filing.
Implications for National Standards
The findings of the court stated that “once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data (see Pension Comm. of the Univ. of Montreal Pension Plan, 685 F Supp 2d at 473)” and that such a hold would “preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee.”
Now that an appeal specific to the Zubulake standard has been upheld and the standard officially adopted across New York districts, what does this mean for e-discovery procedure going forward for the rest of the country? It’s a good chance that more suits will invoke the New York Zubulake standard as case precedence, and the previous ambiguity that surrounded the specifics of e-discovery in litigation is well on its way to becoming conclusively defined.