Electronic Discovery Law

Posted at 9:35 AM on July 13, 2007 by K&L Gates

Court Declines to Order Municipality to Issue Litigation Hold

Valdez v. Town of Brookhaven, 2007 WL 1988792 (E.D.N.Y. July 5, 2007)

In this discrimination case, the court decided a number of discovery issues, including plaintiffs' request that the defendants be directed to send out a litigation hold to the relevant Town employees to preserve records. Denying the request, the court provided a brief explanation:

[T]he plaintiffs request that the court direct defense counsel to send out a litigation hold to the relevant Town employees to preserve records as well as to conduct a good faith investigation into what documents (electronic or otherwise) may have already been destroyed. The apparent basis for this request is a conversation during which defense counsel reportedly advised that the "Town has a history of terrible record keeping." Defense counsel denies any such conversation occurred. The law is clear that there is an obligation to preserve evidence "when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation", see Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (citing Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Kronish v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). To the extent, however, plaintiffs seek a preservation order that request is denied. Preservation orders are burdensome and expensive and in the absence of a clear need should not be lightly entered. See, e.g., Treppel v. Biovail Corp., 233 F.R.D. 363, 370-71 (S.D.N.Y. 2006).

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