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Mark A. Berman Mark A. Berman

The issue of when litigation is “reasonably anticipated” for the purpose of the preservation of electronically stored information (ESI) is often vexing to determine, and decisions issued by the New York courts in the last few months highlight that a determination of when there is a “credible probability of litigation,” and thus having to effectuate a “litigation hold,” requires a factually intensive analysis. Litigators need to take heed that pointed deposition questioning on the issue may well be needed in order to establish as early a date as possible for preservation to be triggered in order to provide the requisite predicate for a spoliation motion. Addressing the rarely litigated issue of the production of “litigation hold” related documents, Radiation Oncology Servs. of Cent. N.Y. v. Our Lady of Lourdes Mem. Hosp., discusses when such information is required to be turned over to the party alleging spoliation. 2020 N.Y. Misc. LEXIS 2636, 2020 NY Slip Op 20133, 2020 WL 324674 (Cortland Co. Sup. Ct. June 9, 2020).

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