On the heels of its implementation of a mandatory electronic case filing system, the Commercial Division of Nassau County has amended its rules of practice to greatly increase the court’s and the parties’ focus on the preservation and exchange of electronic discovery at the outset of litigation. The expanded electronic discovery rules were adopted by all three justices of the division: Justices Leonard B. Austin, Ira B. Warshawsky and Stephen A. Bucaria. This attention to electronic discovery at the outset of a matter is another move by the New York State courts — paralleled by the Federal Court System — to address the overwhelming burden and cost accompanying discovery in our electronic age. Earlier this year, Justice Austin summarized the experiences of many litigators, stating:
When we were young, and we had to go do a case with a massive amount of discovery, there would be the proverbial warehouse in New Jersey where we would go, they would open the doors and there were boxes from the floor to the ceiling, and they’d say, ‘Here they are, take what you want’ . . . . Now, you get two disks with the same number of papers, just in an electronic format. It became the Wild West again.
Vesselin Mitev, Nassau Commercial Courts Adopt New E-Discovery Requirements, N.Y. Law Journal, Feb. 19, 2009.
To combat this “Wild West” scenario, the court harnessed the power of its rules to rein in expensive, burdensome discovery. The rules of practice for the Commercial Division of the Supreme Court are codified at 22 NYCCR 202.70(g). Specifically, Rule 8(b) — titled “Consultation prior to Preliminary and Compliance Conferences” — provides that “prior to the preliminary conference, counsel shall confer with regard to anticipated electronic discovery issues.” The rule includes a non-exhaustive list for the parties’ consideration, including:
(i) implementation of a data preservation plan;
(ii) identification of relevant data;
(iii) the scope, extent and form of production;
(iv) anticipated cost of data recovery and proposed initial allocation of such cost;
(v) disclosure of the programs and manner in which the data is maintained;
(vi) identification of computer system(s) utilized;
(vii) identification of the individual(s) responsible for data preservation;
(viii) confidentiality and privilege issues; and
(ix) designation of experts.
22 NYCCR 202.70(g)(8)(b).
The Nassau County Commercial Division amended its Preliminary Conference Order § 12 to provide practitioners with even greater guidance and thus aid their compliance with 22 NYCCR 202.70(g)(8)(b). See Preliminary Conference Stipulation & Order, available at http://www.courts.state.ny.us/courts/comdiv/PDFs/Nassau-PC-Order2-1-09.pdf. The new order requires that, at an early stage of litigation, the parties meet and confer regarding all Electronically Stored Information (“ESI”) discovery issues and enter into a written plan or stipulation for the preservation of “ESI-related documents, data, and tangible things reasonably anticipated to be subject to discovery in [the] action.” The parties also may choose to limit or eliminate the discovery of ESI or limit or forego the production of information in electronic form. Failure to comply with preservation obligations may result in sanctions, preclusion of evidence, adverse inference instructions, or even the rendering of judgment against offending parties.
One effect of the new Nassau County rule is that practitioners must assess the universe of electronic discovery at the outset of the litigation. Failure to preserve relevant electronic discovery will not be tolerated and spoliation severely punished. Another corollary effect is that, in large part, it places the control with the parties as to how they would like to approach electronic discovery and what amount of exchange is necessary to appropriately litigate a matter. By bringing the issue of electronic discovery to the forefront of a dispute in this nuanced detail, the Nassau County Commercial Division joins the ranks of courts that acknowledge the burdens and pitfalls of electronic discovery and seek to alleviate them through prompt judicial recognition and, where necessary, intervention.