Client Alert

Voom v. EchoStar First Department Analyzes When Duty to Preserve Evidence is Triggered

February 07, 2012


In Voom HD Holdings LLC v. EchoStar Satellite L.L.C., the First Department states that the New York standard establishing when a partys duty to preserve evidence is triggered is the same as the standard set forth in the landmark S.D.N.Y. decision of Zubulake v. UBS Warburg LLC.

The decision underscores that actual litigation or notice of a specific claim is not required to trigger the duty to preserve evidence. Additionally, the decision highlights the risks companies take when they rely on non-attorney employees to institute litigation holds or fail to take measures to suspend automated systems whose operation could lead to the destruction of relevant evidence.

Finally, the decision provides guidance as to the factors New York state courts will consider in determining whether spoliation rises to the level of bad faith or gross negligence, and it reinforces prior cases holding that relevance may be presumed upon a finding of bad faith or grossly negligent spoliation.

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