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Mark A. BermanMark A. Berman (NYLJ/Rick Kopstein)

A series of well-reasoned decisions recently issued by the New York County Supreme Court plumbed the nature of litigation holds and the preservation of electronically stored information (ESI), giving guidance to litigators with excellent practice tips. Some of the issues addressed were somewhat unusual, such as whether to require a litigation hold to a foreign company which did little business in New York state, and an entity’s partners’ personal responsibility to fund ESI expenses. Or they dealt with the more common concerns of preserving text messages and tape recordings stored on cell phones, the forensic review of a server when a litigation hold had not been implemented, the timing of when a litigation hold should have been put in place, or the insufficiency of the record to move for spoliation sanctions.

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