On October 15, the First Department of the New York Appellate Division, clarified the application of federal law and common law spoliation standards as it pertains to cases arising in the First Department. In Strong v. City of N.Y., the First Department held that the federal Zubulake spoliation standard for Electronically Stored Information (“ESI”) does not apply to the destruction of non-ESI audio recordings.
Although there was nothing novel about the First Department’s general holding, it was the context in which the holding was applied that has created a legal stir. Notably, the First Department’s decision has sparked serious conversation as to the Court’s classification of ESI and non-ESI materials. Specifically, the Court’s decision was premised on its classification of electronically created materials, such as audio and video recordings, as non-ESI materials. Thus, the First Department decision has given rise to a new issue in e-discovery as to what materials are considered to be ESI.
In Strong, the evidence issue revolves around the destruction of police audio tapes that recorded a collision involving a police vehicle that went onto the curb of a New York sidewalk and struck 5 pedestrians. The pedestrians brought this suit against the City of New York for injuries incurred by the accident. When the plaintiffs requested that the defendant disclose the police audiotapes involving the accident, the defendant argued that the audiotapes could not be produced because they were deleted as part of the police department’s standard180 day retention policy. The Court rejected the defendant’s argument finding that the city was on notice regarding the law suit during the 180 day retention holding period. Therefore, the city “had the obligation to take steps to prevent the automatic erasure of any audio recording from the incident, and its failure to do so constituted spoliation.”
In determining which standard of spoliation to apply, however, the Court drew a distinction between two different types of electronically created materials, electronic documents versus electronic recordings. This distinction significantly parts ways with the reasoning of Zubulake IV and its progeny which hold that electronic recordings fall within the realm of ESI and therefore should be analyzed under the federal standards of Zubulake. The First Department also conceded that it had previously rendered decisions applying the Zubulake standard to electronically recorded evidence. The Court briefly distinguished these cases by stating that the Zublake IV standard has been applied by the First Department to cases involving the destruction of surveillance videos and the destruction of an entire computer.
The Court further noted that these cases unnecessarily applied the federal standard. The Court concluded that “the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards,” and returned the to the common law spoliation standards regarding destruction of tape recordings that was applied in Sage Realty Corp. v. Proskauer Rose LLP, 275 A.D.2d 11 (N.Y. App. Div. 1st Dep’t 2000). Finally, the First Department quoted a notable Zubulake influenced case, Voom, which stated that the federal standards for spoliation were “harmonious with New York precedent in the traditional discovery context.”
As a result of the First Department’s decision, it will be interesting to see how the other Departments will address the strict traditional stance employed by the First Department and how that court’s decision will influence the electronic discovery landscape.
A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.
 Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003).
 VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 A.D.3d 33 (N.Y. App. Div. 1st Dep’t 2012)