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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: October 16, 2013

A Formal, Written Litigation Hold Not Necessary To Trigger Requirement To Preserve Documents

On October 3, 2013, Justice Friedman of the New York County Commercial Division held in Roberts v. Korwin, 2013 N.Y. Slip Op. 51637(U), a legal malpractice action, that a written, formal litigation hold memo was not necessary to trigger the obligation to preserve documents once a party was on notice of a possible claim, writing:

Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data. Greenberg Traurig submits no authority that the litigation hold must always be written and that the form of the litigation hold may not vary with the circumstances.

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