In determining state of mind, it is important to note that while the duty to preserve evidence existed long before the events at issue, the law with respect to litigation holds and the preservation of electronically stored information was not in 2003 and 2004 developed to the extent that it is today. Indeed, it was not until Zubalake V
was decided in mid–2004 that the requirement to issue a litigation hold was established in the Southern District of New York. See
Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, ––– F.Supp.2d ––––, 2010 WL 184312, *3 & *7 (S.D.N.Y. Jan.15, 2010). Decisions in this District adopting the requirement of a litigation hold were not issued until after the instant motion was filed and after the December 2006 amendments to the Federal Rules of Civil Procedure covering electronic discovery issues, the advisory committee notes for which embrace the concept of a litigation hold. See, e.g.,
Valdez v. Town of Brookhaven, 2007 WL 1988792 (E.D.N.Y. July 5, 2007); M & T Morg. Corp. v. Miller, 2007 WL 2403565 (E.D.N.Y. Aug.17, 2007); Great Northern Ins. Co. v. Power Cooling Inc., 2007 WL 2687666 (E.D.N.Y. Sept.10, 2007); Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec.21, 2007). Finally, with respect to e-mails, it was unclear in 2004 that they had to be preserved in both their electronic and paper form when the party at issue had a paper based records retention policy. Accordingly, with respect to the preservation of electronic evidence, the County's conduct was merely negligent. Cf.
Pension Committee, 2010 WL 184312, at *18 (“The failure to institute a written litigation hold in early 2004 in a case brought in federal court in Florida was on the borderline between a well established duty and one that was not yet generally required, thus, the rule of lenity compels the conclusion that this conduct alone,
under these circumstance, is not sufficient to find that a plaintiff acted in a grossly negligent manner.”) (emphasis in original). The County's failure to execute a comprehensive search for documents and its failure to sufficiently supervise or monitor document retention by its employees supports that the County acted in an indifferent fashion. None of the destruction, however, occurred as the result of willful misconduct or bad faith. Cf.
De Espana, 2007 WL 1686327 *4 (failure to issue litigation hold did not rise to the level of intentional willful destruction of evidence); Treppel, 2008 WL 866584, *9 (failure to take adequate measures to preserve ESI of key executive and their support staff was at least negligent); Pastorello v. City of New York, 2003 WL 1740606, *11–12 (S.D.N.Y.1, 2003) (loss of data was grossly negligent when due to unfamiliarity with record-keeping of employee responsible for preserving documents).