New York State Reaffirms Influence of Zubulake and Pension Committee Federal Decisions and Rejects Lawyers for Civil Justice Amicus Position

In this important state decision, the New York Appellate Court reaffirmed the state law's adoption of many of the ediscovery principles set forth in the federal law including the Zubulake and Pension Committee decisions. In this breach of contract case, the Court issued an adverse inference instruction sanction and found that the defendant had failed to properly preserve ESI after "reasonable anticipation" of litigation. It was noteworthy that the Court refuted the defendant's and amicus's (Lawyers for Civil Justice) legal position as to the preservation date finding that  "[t]o adopt a rule requiring actual litigation or notice of a specific claim [to trigger the preservation obligation] ignores the reality of how business relationships disintegrate. . . . (Read more).