First Department Provides "High-Definition" Clarity For Document Preservation Standard

In Voom HD Holdings LLC v. EchoStar Satellite L.L.C., No. 600292/08 (1st Dep't Jan. 31, 2012), the First Department became the first New York state appellate court to adopt the preservation of evidence standard set forth in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). In Zubulake, Judge Shira Scheindlin held that, "[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."

Background Facts

Voom HD created a group of high-definition television channels that were carried on EchoStar's DISH Network. In November 2005, Voom and EchoStar entered into an affiliation agreement for EchoStar to distribute Voom's programming for a 15-year term. Under the agreement, EchoStar had to include the Voom programming in its standard pricing package and could not tier the Voom channels in order to charge customers a