Commercial Division Blog

Posted: April 3, 2024 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Discovery/Disclosure, Sanctions

Defendant's Production of "Screenshots" of ESI Insufficient

On March 6, 2024, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Zuckerbrot v. Gellis Lande, Index No. 655110/2020, rejecting defendant's claim that her production of "screenshots" of electronically stored information (ESI), rather than "native format ESI," from her social media accounts was sufficient, and fashioning a procedure by which recovery of defendant's social media data may be retrieved, explaining:

Screenshots are not native ESI nor are they complete records (Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 22 [N.Y. Sup Ct, New York County 2017] citing Zubulake v UBS Warburg LLC, 220 FRD 212,217 [SD NY 2003]). However, the failure to maintain ESI in native form should not result in a dispositive sanction where its loss will "not fatally compromise" a claim or defense (id. quoting E. W Howell Co., Inc., v S.A.F. La Sala Corp., 36 AD3d 653, 655 [2d Dept 2007]).

The Court does not find that Defendant's responses to the Discovery Order are so egregious so as to warrant the striking of the Answer. However, Defendant's Instagram messages and other ESI are highly relevant to the claims in defenses in this action. Accordingly, Defendant must provide relevant ESI in its native format, or alternatively provide authorization(s) to facilitate access to the pertinent accounts. If Meta, or any other relevant custodian, determines that native ESI is unavailable, in whole or in part, Defendant shall provide Plaintiffs' expert with access to her electronic devices for forensic examination. Should the ESI be determined to be unavailable, in whole or in part, following a forensic examination, Plaintiffs may move for appropriate relief.

The parties must engage in good-faith efforts to establish a protocol for the search and retrieval of ESI, including but not limited to identifying search terms and a relevant time frame. The process must be interactive, including experts if necessary, and efforts must be made to retrieve the ESI without the necessity of a forensic review in the first instance (Genger v Genger, 144 AD3d 581, 584 [1st Dept 2016] citing Melcher v. Apollo Med. Fund Mgt. L.L.C., 52 A.D.3d 244,245, 859 N.Y.S.2d 160 [1st Dept 2008]). The parties may submit a stipulated confidentiality order or, if necessary, move for a confidentiality order (In re New York City Asbestos Litig., 133 AD3d 463,464 [1st Dept 2015]). Should disputes arise, the parties must submit a detailed Rule 14 submission and arrange for a conference with the Court's Principal Law Clerk (Cashbamba v 1056 Bedford LLC, 172 AD3d 415,416 [I8t Dept 2019]).

As the universe of electronically stored information that parties maintain expands, so do litigants' discovery obligations. As this case shows, merely producing "screenshots" of messages or posts that are otherwise available in native format is insufficient. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning production of ESI.