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  • Electronic Discovery: Avoiding Disaster: 2013 Zubulake Updates

    It is always a good idea to Shepardize or Keycite important cases, especially when the case involves the ever evolving area of e-discovery.  We find ourselves always checking the cases in our CLE entitled “Electronic Discovery: Avoiding Disaster” to ensure that it remains up-to-date. Typically, in doing so, we tend to check the Zubulake line of cases first as it remains the leading precedent in the e-discovery realm. Here are some of our recent findings:

    In re Pfizer Inc., No. 04 Civ. 9866 (LTS)(HBP), 2013 U.S. Dist. LEXIS 2850 (S.D.N.Y. Jan. 8, 2013):

    In this class action suit against Pfizer, defendants moved for sanctions against Pfizer for their failure to preserve certain ESI. Here, Plaintiffs claim that Pfizer’s belated production of ESI obtained from eRooms (a collaborative application Pfizer  employees used to share documents, share calendars, archive email, conduct discussions/instant messaging, and to conduct informal polls) and the centralized databases justifies sanctions. In ruling on whether to sanction Pfizer, the Court held that “[t]here is no dispute that Pfizer had an obligation to produce documents from the eRooms and the two centralized databases. The record, however, does not demonstrate that Pfizer acted with a culpable state of mind. Despite the fact that Pfizer did not begin to produce documents from these sources until near the close of discovery, once the existence of these repositories was called to counsel’s attention, Pfizer acted in a timely manner … Though Plaintiffs may have preferred to receive categorically organized productions earlier on in the discovery process, this does not change the fact that Pfizer did produce these documents. The ultimate production of these documents militates against the imposition of sanctions.”

    Distefano v. Law Offices of Barbara H. Katsos, PC, 2013 U.S. Dist. LEXIS 47036, 12-13 (E.D.N.Y. Mar. 29, 2013):

    In a suit against their former attorney, the Court, citing to Zubulake for the spoliation of evidence standard, concluded that defendant-attorney’s duty to preserve documents arose when Plaintiff terminated the attorney-client relationship.  More specifically, a letter sent by Plaintiff to Defendant provided sufficient notice to the Defendant that Plaintiff was terminating her representation for some reasons not yet fully defined. The fact that Plaintiff said she was “discharging” Defendant and would put the reasons in writing should have raised enough of a red flag for Defendant to undertake some precautions and implement a litigation hold. “The duty to preserve arises, not when litigation is certain, but rather when it is “‘reasonably foreseeable.’”

    Usavage v. Port Auth. of N.Y. & N.J., 2013 U.S. Dist. LEXIS 45600, 26-28 (S.D.N.Y. Mar. 26, 2013):

    In a civil rights action where Plaintiff alleged that the Port Authority of New York and New Jersey (“PATH”) and various other NYS officers (collectively, “Defendants”) violated his state and federal rights by subjecting him to excessive force, the Court cited Zubulake to determine whether PATH should be sanctioned for failing to preserve portions of camera footage that might have captured the alleged excessive force Incident. The Court ruled that the “claim does not succeed because Plaintiff fails to prove the culpability element prerequisite to a sanction for spoliation.” First, Plaintiff failed to establish malice or recklessness, “since the creation and retention of footage pursuant to ordinary PATH procedures was driven by operational and technical factors entirely independent of this case.”  Second, the Court concluded that PATH did not act negligently. “PATH was under no duty to preserve the disputed footage because, as a result of Plaintiff’s own statements, PATH was not on notice of the potential salience of that footage. Plaintiff filed a complaint with PATH on the night of the disputed events in which he declined even to specify a general location within JSQ station or offer guidance as to which evidence might be relevant. To the contrary, his filing referred only to being ‘placed in handcuffs’ and then those handcuffs being tightened. This vague complaint, on its own, did not trigger a duty on the part of PATH officials to obtain camera footage from each and every part of JSQ station that could theoretically have been relevant to his claims.”

    If you or your company has any questions or concerns regarding the allocation of e-discovery costs, or any other e-discovery related issue, contact at Cynthia Augello via email at caugello@cullenanddykman.com.

    A special thanks to Sean R. Gajewski, an associate at Cullen and Dykman LLP, for help with this post.