Tag Archives: Zubulake

Remedies For Spoliation Of Evidence

New York state courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed how New York courts address ESI spoliation.

Pursuant to the common law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. There may be circumstances where the destruction is so egregious that the offending party’s pleading may be stricken where no other remedy will achieve a fundamentally fair outcome.

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New York’s First Department Adopts Even More Of Zubulake

On February 28, 2012, the Appellate Division, First Department, issued its decision in U.S. Bank N.A. v. GreenPoint Mortgage Funding, Inc., 2012 N.Y. App.Div. LEXIS 1487, which  adopted the standards established in the SDNY’s 2003  landmark decision in  Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (SDNY 2003).  In its decsion, he First Department held that the  party producing electronically stored information (“ESI”) bears the the burden of paying for the production.  This unanimous decision represents a reversal of several New York trial court rulings holding that the party requesting disclosure had the obligation to pay for its production. 

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