The New York State Unified Court System just adopted additional rules and guidelines in the Commercial Division for Electronically Stored Information (“ESI”) on April 11, 2022.  The 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. 

Under the amended Rule 11-c, parties are required to confer regarding electronic discovery prior to the initial conference.[i]   The rule further provides that any topics upon which the parties cannot reach agreement are to be addressed with the Court at the preliminary conference.

The amended Rule 11-c also addresses efficiency and cost with respect to electronic discovery. The new rule adopts a cost-benefit analysis similar to the standard in Federal Court and requires that “[t]he costs and burdens of ESI shall not be disproportionate to its benefits.” Cost shifting can be a game changer in many cases if handled appropriately. To that end, the parties are required to consider “the nature of the dispute, the amount in controversy, and the importance of the materials requested to resolve the dispute.” The amended rule also encourages the parties to use technology-assisted review when appropriate, and the parties are required to confer regarding “technology-assisted review mechanisms” throughout the discovery period. Lastly, the amended rule adds a claw-back provision for inadvertently produced ESI that is subject to either attorney-client privilege or the work product doctrine. This is extremely valuable as waiving the privilege by inadvertent disclosure otherwise could result in attorney liability or violation of professional responsibility.

The amendments also modify Appendix A to Rule 11-c—which previously only addressed non-party ESI.  The new Appendix A replaces the non-party guidelines “with new guidelines to cover all aspects of ESI, from parties and non-parties alike.”    Specifically, the new ESI guidelines (1) encourage early discussion of ESI and suggest that an informal meet and confer process is preferred to formal discovery or motion practice; (2) counsel parties to limit discovery requests to what is proportional to the needs of the case; and (3) encourage informal resolution of disputes regarding ESI.  The goal of these guidelines is to “facilitate the cost-effective, predictable, and fair adjudication of cases.”  The guidelines make clear that parties “should not use discovery of ESI for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” 

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 remaining amendments primarily streamline the rules and correct references based on the amended Rule 11-c.  See more.