New York state courts issue sanctions for the failure to maintain electronically stored information (ESI) that fall, as the First Department recently aptly coined, within the "zone of the preservation duty" of a party.1 Seeking to describe the parameters of that "zone," the New York State Bar Association's "Best Practices in E-Discovery in New York State and Federal Courts Version 2.0,"2 in addressing the point where a party's duty to preserve ESI may be "triggered," states:
[C]ase law illustrates a wide variety of triggers, from the common (e.g., a credible litigation threat letter from a lawyer) to the more controversial (e.g., lawsuits alleging product defects filed against other businesses in the same industry). There are no bright line rules defining with specificity the point at which the preservation obligation is "triggered."
