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New York State Unified Court System Issue Request for Comment On New Commercial Division ESI Rules

On September 7, 2021, the New York State Unified Court System published a request for comment on proposed additional rules and guidelines for Electronically Stored Information (“ESI”).  According to the proposal, “[t]he goal of the revisions is to address e-discovery in a more consolidated way, modify the rules for clarity and consistency, expand the rules to address important ESI topics consistent with the CPLR and caselaw, and to provide further detail in Appendix A – Proposed ESI Guidelines than is practical in the Commercial Division Rules.” 

The first modification proposal contains significant additions to Rule 11.  Specifically, the modified rule would provide that parties are to confer regarding electronic discovery prior to the initial conference and specifically indicates that electronic discovery will be discussed at any initial conference.  The proposed modifications to the rule also address efficiency and cost with respect to electronic discovery.  The modified rule would provide that “[t]he costs and burdens of ESI shall not be disproportionate to its benefits” and adopts a cost-benefit analysis similar to the standard in Federal Court.  The modified rule also encourages the parties to use technology-assisted review when appropriate.  Lastly, the modified rule adds a claw-back provision for inadvertently produced ESI that is subject to either attorney-client privilege or the work product doctrine.

The second major proposed modification is to Appendix A to Commercial Division Rule 11-c—which currently addresses only non-party ESI.  The modifications to Appendix A would replace the non-party guidelines “with new guidelines to cover all aspects of ESI, from parties and non-parties alike.”  The drafters of the proposal developed these guidelines based on “rules and practices set forth in the ESI guidelines of several federal district and state courts, federal and New York decisional law, and commentaries published by The Sedona Conference.”[1]

Specifically, the newly proposed ESI guidelines (1) encourage early discussion of ESI; (2) limit discovery requests to what is proportional to the needs of the case; (3) encourage informal resolution of disputes regarding ESI; and (4) provide that the requesting party should defray non-parties reasonable production costs.  The modifications also include general guidance on a number of specific ESI issues, including:  (1) the importance of technical competence in e-discovery; (2) the obligation of counsel to actively assist in preservation, collection, search, review, and production of ESI; (3) defensible preservation and collection of sources of ESI; (4) processes for determining if ESI is “not reasonably assessable;” (5) processes for determining acceptable formats for ESI production; and (6) a claw-back provision for inadvertently produced documents. 

The remainder of the proposed modifications serve to streamline the rules and correct references based on the proposed modifications.  A full copy of the proposed modifications is available here.  The Court system has requested comments by November 8, 2021.

[1] The Sedona Conference is a nonpartisan, nonprofit 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, intellectual property rights, and data security and privacy law.  The Sedona Conference Working Group is considered an authority on eDiscovery in the United States and internationally.