Electronic Data Discovery: Duty To Preserve Evidence

Article by Ms Kerry A. Brennan, Mr Charles R. Ragan and Ms Amy C. Gross

As businesses increasingly communicate, operate and store information electronically, they face new challenges in complying with the obligation to preserve electronic data that may be used in litigation. The ease with which electronic information can be deleted, altered or overwritten raises unique issues. Most recently, in Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243, 2003 WL 22410619 (S.D.N.Y. October 22, 2003), the court outlined a party’s duty to preserve electronic evidence in the face of current or anticipated litigation. The Zubulake court earlier set forth a new legal standard for determining the cost allocation among parties for producing inaccessible electronic data. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). In its most recent decision, the court applied the established standard that a party has a duty to preserve evidence, including electronic data, when the party knows or