Adopting Zubulake Cost-Shifting Procedures In NY

March 20, 2012

Following on the heels of its decision in Voom HD Holdings LLC v. Echostar Satellite LLC, -- N.Y.S.2d --, (1st Dep’t. Jan 31, 2012), which adopts the standards for preserving electronically stored information and implementing a litigation hold set out in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Scheindlin, J.) (“Zubulake II”), the New York State Supreme Court Appellate Division, First Department, has adopted the cost-shifting standards set out in Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Scheindlin, J.) (“Zubulake”).

Ruling on a dispute over the burdensome costs of electronic discovery, the First Department held in U.S. Bank Nat’l Ass’n v. GreenPoint Mtg. Funding Inc. “that Zubulake should be the rule in this Department, requiring the producing party to bear the cost of production as modified by the IAS court in the exercise of its discretion on a proper motion by the producing party.” --- N.Y.S.2d ----, (1st Dep’t Feb. 28, 2012).