In January 2012, the Appellate Division, First Department, issued its landmark decision, VOOM HD Holdings v. EchoStar Satellite,1 (Voom), which clarified when electronically stored information (ESI) needs to be preserved and a "litigation hold" needs to be put in place. The First Department held:
Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents…. A party seeking sanctions based on the spoliation of evidence must demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state of mind"; and finally (3) that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense…. A "culpable state of mind" for purposes of a spoliation sanction includes ordinary negligence.
The First Department stated that, in implementing a litigation hold, a company "must direct appropriate employees to 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." "The hold should, with as much specificity as possible, describe the ESI at issue, direct that routine destruction policies such as auto-delete functions and rewriting over emails cease, and describe the consequences for failure to so preserve electronically stored evidence." The court noted that this "must" be done with "the guidance and supervision of counsel."
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