The New York State court system has proposed amending court rules to require lawyers in civil cases to confer about electronic discovery prior to the preliminary conference in every case reasonably likely to involve the discovery of electronically stored information (“ESI”). Until now, only parties with cases in the state’s Commercial Division have been under such an obligation so early in the case. The proposed new rule, and two other proposed revisions, all announced on January 7, 2013, are part of the court system’s ongoing effort to improve the management of electronic discovery issues. This is the first revision proposed since the First Department of the New York Supreme Court Appellate Division issued its game-changing decision one year ago in VOOM HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321 (lst Dep’t 2012) (“VOOM HD”), and is one more indication that the court system recognizes how costly delay can be in the age of ESI. VOOM HD, recapped below, addressed standards for the preservation of electronically stored information. The proposed new rules, formulated by the E-Discovery Working Group of the New York State Unified Court System (the “E-Discovery Working Group”), address the excessive litigation costs that can result when parties take an adversarial approach to electronic discovery.

VOOM HD Holdings LLC

One year ago, the New York State Appellate Division, First Department, issued a unanimous decision adopting e-discovery preservation rules in VOOM HD. Specifically invoking standards that had been established by Southern District of New York Judge Shira A. Scheindlin in two landmark cases, Zubulake v. USB Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), and Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Amer. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), the First Department now requires parties to take reasonable steps to preserve relevant documents once they reasonably anticipate litigation. This means putting a “litigation hold” in place and suspending routine document retention and destruction practices. VOOM HD, 93 A.D. at 36. A party failing to institute a preservation plan as soon as litigation is reasonably anticipated faces the possibility of sanctions, including an adverse inference charge permitting the fact finder to draw an inference against the party, if relevant evidence is lost as a result.

The Proposed Changes to the New York Uniform Rules of the Trial Courts

On the heels of VOOM HD, the E-Discovery Working Group proposed amendments to 22 NYCRR § 202.12(b) of the Uniform Rules of the Trial Courts. Section 202.12 establishes the procedures to be followed by New York State Supreme and County Courts at preliminary conferences. Until now, subsection (b) has required only that, where a case is reasonably likely to include electronic discovery, counsel for all parties come to the preliminary conference with enough information about their clients’ technological systems to be able to engage competently with the court in discussions of electronic discovery. The proposed revision adds two provisions: (i) a requirement that counsel in such cases confer about electronic discovery before the preliminary conference, and (ii) a list of questions to help the court, and, presumably counsel, decide whether a case is “reasonably likely to include electronic discovery.”

The proposed changes also would amend subsection (c) of § 202.12, the subsection that mandates what is to be considered at the preliminary conference. Already, subsection (c)(3) directs the court, where appropriate, to establish a case plan for electronic discovery, and recommends elements the court should consider including in a plan. The proposed revision modifies each of the listed elements, making them more detailed and specific, and adds a recommendation that the plan include a claw-back provision for inadvertently produced privileged information.

Finally, the proposed changes would amend 22 NYCRR § 202.70, the section that sets forth the procedure for preliminary conferences in the Commercial Division. The proposed revision to § 202.70 conforms the elements to be considered to be consistent with those contained in § 202.12(c) and § 202.70. There was no need to add a requirement that counsel confer about electronic discovery before the preliminary conference because that has been mandated in all cases in the Commercial Division since 2006. And, as already formulated, § 202.70 requires the parties to consider the elements of an electronic discovery plan before the preliminary conference. A feature distinguishing the rules for the regular civil courts and the rules for the Commercial Division is not disturbed by the proposed amendments – in the regular civil courts, judges may establish an electronic discovery plan but they are not required to; in the Commercial Division, the parties must consider the elements of a plan during their pre-preliminary conference discussion of electronic discovery.

Conclusion

The rule changes proposed by the E-Discovery Working Group reflect an evolving process of integrating electronic discovery doctrines into state court practice. Rapidly developing case law and emerging technologies make ESI preservation and production standards sometimes appear to be moving targets. With these proposals, the New York state courts will take a further step towards providing guidance and assisting litigants as they anticipate and manage the costs of electronic discovery. n