Second Circuit Rejects Zubulake Revisited Standard On Litigation Hold Notices

Sometimes appellate courts have an opportunity to impose reason and common sense in discovery disputes.  In Chin v. Port Authority of New York and New Jersey, the Court of Appeals for the Second Circuit recently did just this.  Chin involved plaintiffs' attempt to obtain an advantage (i.e., an adverse inference) in an employment lawsuit based on a government defendant's failure to issue a litigation hold notice for certain promotion folders.  Those folders, potentially beneficial to the plaintiffs' case, were unavailable when the plaintiffs claimed they should have been preserved.  The Second Circuit, affirming the district court's decision, held that the accused spoliator's culpability should be determined by the "totality of the circumstances" considered in light of the context of the specific litigation.