Is the Gap Between Perfection and Negligence Closing? - Stripping the Dicta Out of Voom v. Echostar

February 14, 2012 Author: David J. Kessler

On Tuesday, January 31, the New York Appellate Division, First Department issued an opinion in Voom HD Holdings LLC v. EchoStar Satellite LLC, upholding a sanctions order against EchoStar Satellite (''EchoStar'') (Voom HD Holdings LLC v. EchoStar Satellite LLC, N.Y. App. Div., No. M-1748 & 600292/08, 5121N, M-1833, 1/31/12).

Adoption of Zubulake, Pension Committee. This opinion will likely garner a great deal of attention in the ongoing debate regarding the potential need for amendments to the Federal Rules of Civil Procedure, because the Appellate Court explicitly adopts the standards delineated in both Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003) (''Zubulake IV'') and Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp.2d 456 (S.D.N.Y. 2010) and upholds the sanctions against the defendant EchoStar based on EchoStar's failure to take steps to preserve data once the Court found it had a reasonable anticipation of litigation (at least six months prior to Voom initiating the action).

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