On July 19, 2018, Chief Administrative Judge of the Courts, Lawrence K. Marks, issued an administrative order promulgating a new subdivision of Rule 11-e of the Commercial Division Rules.
Rule 11-e governs Responses and Objections to Document Requests, and the newly added subdivision specifically addresses the use of technology-assisted review in the discovery process. The new subdivision (f) states:
The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production.
The rule change is the result of a proposal made earlier this year by the Commercial Division Advisory Council.[i] The Council’s memorandum accompanying the proposal explained that the rule “would make clear that the Commercial Division is sensitive to the cost of document review in complex commercial cases and is in line with other courts, including other centers of high-stakes commercial litigation such as the Southern District and the Delaware Chancery Court, in supporting the use of technology-assisted review, including predictive coding, in appropriate cases.”
The memorandum added that the then-proposed rule avoided prescribing “whether or when any particular form of technology-assisted review may or should be used.” Instead, “[i]f the methodology chosen is reasonable in the circumstances—that is, ‘if the burden of identifying additional ESI outweighs the need for additional discovery and its importance in resolving the issues in dispute’—then it should be deemed sufficient to meet a party’s disclosure obligations.”
The rule also promotes cooperation by encouraging parties in commercial cases “to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production.” Still, as the Advisory Council memorandum explains, the new rule “does not prevent the requesting party from challenging those means as inadequate or a production as incomplete, nor does the proposed rule constrain in any way the presiding justice’s oversight of the disclosure process.”
The rule change will take effect on October 1, 2018.