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.
To view this content, please continue to Lexis Advance®.
Not a Lexis Advance® Subscriber? Subscribe Now
LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.
ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.
For questions call 1-877-256-2472 or contact us at firstname.lastname@example.org