ESI Evidence: Authentication and Hearsay Issues

It is remarkable how few New York state court decisions exist addressing the authentication of and hearsay objections to electronically stored information (ESI), and that may be because litigators do not appreciate how vulnerable ESI can be to attack and how to properly frame and then support opposition to its use when it has been relied upon […]

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Practical ESI Lesson Concerning Non-Parties

January 2017 brought a series of decisions by motion courts in New York County Supreme Court concerning electronically stored information (ESI) discovery disputes with non-parties. Bank of N.Y. Mellon v. WMC Mtge., 1 2017 N.Y. Misc. LEXIS 222 (Sup. Ct. N.Y. Co. Jan. 18, 2017) (J. Kornreich) made clear a requesting party’s obligation to defray the […]

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Forensic Computer Reviews and Emails as Documentary Evidence

State E-Discovery Forensic reviews of an opposing party’s computer to obtain electronically stored information (ESI) have been recently addressed in a number of state court decisions. The request is sometimes initially denied, as courts first want to see if the requesting party can obtain the sought after ESI from another source, as formed part of […]

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The Awesome Power of ESI

State E-Discovery Electronic communications, including social media, can be extremely powerful tools in a litigation and, concomitantly, the wrongful loss or destruction of such electronically stored information (ESI) can be equally as devastating in a legal dispute. Recently, in Crocker C. v Anne R.,1 a “war of the roses” custody battle, the incredible power of digital evidence, […]

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Non-Willful Spoliation of ESI

Recent state court decisions have grappled with the appropriate sanction for non-willful spoliation of electronically stored information (ESI) and, as noted in Arbor Realty Funding v. Herrick, Feinstein,1 the spoliation “sanction must reflect ‘an appropriate balancing under the circumstances.’” As such, in non-willful spoliation disputes, often courts are not striking pleadings or issuing preclusion orders but instead […]

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‘Pegasus’ and ESI Audit Trails

It has been six months since the New York Court of Appeals issued its decision in Pegasus Aviation I v. Varig Logistica S.A.,1 sustaining the concept that spoliation of electronically stored information (ESI) may be predicated upon negligence and, since then, very few cases have construed it. However, a recent Fourth Department decision, Sarach v. M&T Bank,2 raised the […]

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New Decisions on Emails and Motion Practice

State E-Discovery The recent decisions in Absolute Elec. Contr. v. IBEX Constr.1 and 1301 Properties Owner v. Abelson2 addressed the use of emails on motions to dismiss and for summary judgment and, in these cases, the courts did not sustain objections directed against their usage where, even without necessarily being accompanied by an affidavit from someone with personal knowledge […]

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Navigating Issues Surrounding Metadata and Authenticity

It is surprising how few reported New York decisions there are concerning disputes over the production of electronic “metadata.”1 For those attorneys not familiar with the term, Aguilar v. Immigration & Customs Enforcement Div.2 defines [m]etadata, frequently referred to as “data about data, “[a]s electronically-stored evidence that describes the “history, tracking, or management of an electronic document.” Id. […]

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Social Media Discovery in Personal Injury Cases: Is Equilibrium Possible?

Should the procedures regarding the discovery of “private” social media posts in a personal injury action differ from traditional paper discovery? Should the rule not be, as suggested in the dissent in Forman v. Henkin, 2015 Slip Op. 09350 (1st Dep’t Dec. 17, 2015), that as long as the information is relevant and responsive to an […]

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