Zubulake Revisited: Modern Preservation Obligations and E-Discovery Liability

November 2010Articles New York State Public Employer Labor Relations Association Newsletter

Electronic data storage has become the norm for most employers, governmental entities and businesses. As a result, the courts have implemented rules to ensure electronically stored information (ESI) is properly preserved and produced during discovery. In 2006, the Federal Rules of Civil Procedure were amended to address issues specific to ESI preservation and production. The Association of the Bar of the City of New York has also recently petitioned to amend the New York Civil Practice Law and Rules to account for ESI issues. Yet, despite increased attention to ESI-related discovery issues, the question still remains: What can employers do when faced with litigation to avoid liability for negligent document preservation or intentional spoliation?