When might an entity be required to suspend its routine record retention policy and preserve certain ESI covered under that policy?

When might you be required to preserve certain ESI beyond your routine record retention policy? When that ESI is the subject of pending litigation and a court determines that ESI is in danger of being destroyed pursuant to your policy.

Author: Sarah E. Hsu Wilbur
Case Citation: Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 3, 2017)
Employee/Personnel/Employer implicated: Department of Corrections and Community Supervision (DOCCS)
eLesson Learned: A court can order an entity to suspend its routine record retention policy and preserve certain electronically stored information (ESI) related to pending litigation if it determines the ESI is in danger of being destroyed due to that policy.
Tweet this: A one-year routine record retention policy could be enough for a court to order certain data under that policy be preserved.

Courts generally do not have to order parties to a lawsuit to preserve evidence because Federal Rule of Civil Procedure 37 states that parties must take reasonable steps to preserve material related to litigation. Micolo v. Fuller, No. 15-cv-6374, 2016 WL 158591, at *1 (W.D.N.Y. Jan. 13, 2016). But courts do sometimes issue such an order if a party demonstrates that certain evidence related to pending litigation is in danger of being destroyed without court intervention. Id. That is exactly what happened in this case.

The plaintiff, in this case, a pro se prisoner, filed a motion to compel the Defendants, Department of Corrections and Community Supervision (DOCCS) officials, to preserve evidence—specifically video and audio recordings from eight specified dates of Plaintiff’s tier and grievance hearings, which recordings related to claims Plaintiff included in his proposed amended complaint. Plaintiff requested these recordings through a Freedom of Information Law request. In support of his motion, Plaintiff attached letters from DOCCS stating that the recordings he requested would only be retained for one year. Given DOCCS’s one-year routine record retention policy, the court found that the requested recordings were in danger of being destroyed (presumably at the end of that one-year period or at least before the end of the litigation) and thus granted Plaintiff’s motion to preserve the recordings.

The court stated an order was “appropriate to ensure the recordings would be preserved throughout the pendency of this case.” Additionally, the court noted that even though a judge had not yet ruled on whether Plaintiff’s proposed amended complaint was sufficient, the court stated the recordings should nonetheless be preserved because they were the subject of the pending litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The court accordingly directed DOCCS to suspend “its routine document and retention/destruction policy” and stated that DOCCS was on notice going forward that it must preserve “all evidence reasonably related to plaintiff’s existing and proposed claims.” Luellen v. Hodge, No. 11-cv-6114P, 2014 WL 1315317, at *5 (W.D.N.Y. Mar. 28, 2014) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)).

Sarah is a Seton Hall University School of Law student (Class of 2018), pursuing an Intellectual Property concentration through the Privacy and Security Law Track. After graduating, she will begin working as a Litigation Associate in a large Manhattan law firm. Sarah graduated from the University of Florida in 2009 with a B.S. in Journalism, and she worked as both a multimedia journalist and a legal assistant before attending law school.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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