Va va Voom

By | 8th February 2012

You will have to be at least 25 years old, I suspect, to remember a remarkably successful TV advertising campaign in the Nineties to promote the Renault Clio. Between 1991 and 1998, the series featured a father and daughter, Papa and Nicole, (with two other walk on parts) and apparently recreated the exchanges between Nicole Bonnet played by Audrey Hepburn and Hugh Griffiths who played her father in the 1966 film How to Steal a Million. Surveys claimed that the Papa!-Nicole! exchanges made Renault the most persuasive advertiser at the time.

Apart from the immensely pretty Estelle Skornik who played Nicole, the series is astonishing in that, over its seven years, only five words were ever spoken: Papa, Nicole, Maman, Bob and Yes! But if this does not ring a bell and/or you are football crazy you may remember (although you may have to be an Arsenal fan!) that Thierry Henry was engaged to advertise the Clio in the Noughties, giving it added Va-Va-Voom.

For me, however, the original advertisements remain unsurpassed for impact and memorability.

I found myself reminded of the exploits of Nicole while I was in New York last week for Legal Tech 2012 and no fewer than three US lawyers mentioned to me a decision in the New York State Court Appellate Division in the case of Voom HD Holdings LLC v EchoStar Satellite LLC Index M 1748 and M 1833, 600292/08.

The court dismissed an appeal from and affirmed the order of the Supreme Court, New York County (Judge Richard B Lowe 111) granting the plaintiff’s motion to impose sanctions against the Defendants for spoliation of evidence. This is of course a US case with no direct influence or precedent for cases on this side of the pond, but I have always felt that it is instructive to see what the US does in relation to electronic discovery on the basis that they have a very mature market and, while our rules are different, there are many more similarities than appear at first sight.

The facts of the case are not material for present purposes and in any event you can see the whole judgment by clicking the link above. The point I want to draw to the attention of readers is that Judge Sallie Manzanet-Daniels confirmed that the approach to spoliation and legal hold (destruction/damage of documents and the obligation to preserve when litigation is, or ought reasonably to be, contemplated) should not come as any surprise to English practitioners. The approach adopted in the line of cases which runs through Zubulake v UBS Warburg LLC (220 FRD 212 [SD NY 2003] through Pension Comm. of the Univ. of Montreal Pension Plan, 685 F Supp 2d at 473 and Victor Stanley, Inc. v Creative Pipe, Inc., 269 FRD 497, 521 [D Md 2010] (all previously mentioned from time to time in this blog) is confirmed as correct.

I venture to suggest that this is something of which English practitioners should take note because the consequences of a failure to follow the basic rules may prove just as catastrophic for the party in default regardless which side of the Atlantic they are based.

As the Judge remarked:

“This case requires us to determine the scope of a party’s duties in the electronic discovery context and the appropriate sanction for failure to preserve electronically stored information (ESI)”.

That seems to me to make the case worthy of note. Starting this piece frivolously with the lovely Nicole is one thing, but if you are a litigation practitioner and you really want Va-Va-Voom, then you should take note of Voom v EchoStar.