Case Blurb: Zubulake; Sanctions for Destroying Evidence Explained

A party can only be sanctioned for destroying evidence that it had a duty to preserve, and such duty arises 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. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

However, a corp. upon recognizing the threat of litigation, need not preserve every shred of paper, every e-mail or electronic document, and every backup tape. Id.

Instead, the duty to preserve extends to any documents or tangible things made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Id.

The duty also extends to documents prepared for those individuals and to information that is relevant to the claims and defenses of any party, or which is relevant to the subject matter involved in the action. Id.

Thus, the duty to preserve extends to those employees likely to have relevant information, i.e. the “key players” in the litigation. Id.

Case Blurb: WESTLB AG; Key Players defined

Key players are “individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006) (citing Chan v. Triple 8 Palace, Inc., 03 Civ 6048(GEL)(JCF), 2005 WL 1925579 at 6 (S.D.N.Y. 2005) (quoting Zubulake IV, 220 F.R.D. at 218)).

Case Blurb: NTL Securities Litigation; Scope of duty to preserve and key players

The duty [to preserve evidence] also includes documents prepared for those individuals ["key players"], to the extent those documents can be readily identified (e.g., from the ‘to’ field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is ‘relevant to the subject matter involved in the action.’ Thus, the duty to preserve extends to those employees likely to have relevant information–the ‘key players’ in the case. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Case Blurb: NTL Securities Litigation; Scope of the Duty to Preserve

The duty to preserve extends “to any documents or tangible things (as defined by Rule 34(a) [including email] ) made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’ In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Case Blurb; WestLB AG; Key Players have a duty to preserve relevant documents

The scope of the duty [to preserve relevant documents] extends to the “key players” in a litigation. Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006).