In our August 2010 Electronic Discovery Update, we highlighted a report by the New York State Unified Court System (hereinafter, the “Report”), released in February 2010 by Chief Judge Jonathan Lippman and Chief Administrative Judge Ann Pfau. See New York State Unified Court System, Electronic Discovery in the New York State Courts (February 2010), available at http://www. courts.state.ny.us/courts/comdiv/PDFs/E-DiscoveryReport. pdf. The Report aimed to reduce the costs and amount of time spent on e-discovery by proposing several ways to make the process less expensive and more efficient for both the courts and practitioners.
Late last year, the New York Uniform Rules for the Trial Courts were amended to adopt one of the Report’s recommendations for addressing the e-discovery process at the Preliminary Conference (the “PC”). There are two key enactments. First, Uniform Rule 202.12(b) and Uniform Rule 202.70(g) (Commercial Division Rule 1) now require lawyers appearing at the PC to be prepared to address e-discovery issues. Specifically, counsel appearing at the PC must be
. . . sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery.
22 NYCRR § 202.12(b); 22 NYCRR § 202.70(g)(1). The changes to Commercial Division Rule 1 are meant to be consistent with Commercial Division Rule 8(b), which already codifies similar requirements. Rule 8(b) additionally provides that counsel confer with each other prior to the PC regarding nine enumerated e-discovery issues. See 22 NYCRR § 202.70(g)(8)(b).
These additions are intended to improve attorneys’ abilities to engage in a productive conversation about the e-discovery process. They reflect the Report’s findings that e-discovery disputes are best addressed at the outset of a case, with the oversight and involvement of the court. The Report proffers that the changes will prevent future delays and the waste of limited court resources that occur when attorneys do not consider e-discovery issues in advance of the PC.
Second, as recommended by the Report, the new rules provide that “[c]ounsel may bring a client representative or outside expert to assist” in the e-discovery discussion. 22 NYCRR § 202.12(b); 22 NYCRR § 202.70(g)(1). The purpose of this addition is to expand options for resolving e-discovery issues at an early stage. The Report notes that participation of client representatives (such as IT personnel) or outside experts at the PC may lead to quicker resolution of e-discovery issues because these individuals often have in-depth knowledge about the technicalities involved in retrieving electronically-stored information. An attorney choosing this option should make sure that his or her client representative or outside expert is thoroughly prepared for the hearing in order to provide an accurate representation of the client’s abilities to retrieve and produce electronic data in a manner that will be usable for litigation purposes.
Practitioners must be aware of these two important changes, as they greatly increase and magnify an attorney’s obligation to focus on e-discovery from the outset of a litigation. Judge Pfau has warned that failure to comply with the new rules may result in a default (a consequence set out in Commercial Division Rule 1). The full text of the amendments can be found at http://www.dos.state.ny.us/ info/register/2010/aug18/pdfs/courtnotices.pdf.