New York Appellate Division Addresses Litigation Hold Trigger And Document Preservation Standards For Electronic Discovery

The New York Supreme Court, Appellate Division's opinion in Voom HD Holdings LLC v. EchoStar Satellite LLC,–N.Y. S. 2d–, 2012 WL 265833 (N.Y.A.D. 1st Dept. Jan. 31, 2012) is a significant electronic discovery decision that warrants the attention of any enterprise doing business in New York. EchoStar has since filed a Petition for Leave to Appeal to the New York Court of Appeals. Voom is noteworthy for four reasons:

1. It defines "reasonably anticipates litigation," the trigger for issuing a litigation hold notice, as occurring when the party is "on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation." In Voom, the triggering event was Voom's issuance of a demand letter.