New York state court practitioners need to be increasingly mindful about their e-discovery obligations. Although Congress and the federal courts have largely blazed the e-discovery trail to date, e-discovery issues are slowly but surely being addressed at the state level as well.
Recently, New York’s Electronic Discovery Working Group selected Part 48 of the Commercial Division of the State Supreme Court in New York County (currently run by Justice Jeffrey K. Oing) to participate in a pilot program to utilize a new Electronic Discovery Order (“EDO”) form. A link to the Court’s webpage with links to the EDO, Pilot Memo and Rules for Part 48 can be found here. The EDO will supplement, rather than replace, the current Preliminary Conference Memo and will apply to all Part 48 cases filed after June 15, 2011. This program and its EDO is similar to a Pilot Program and EDO in the United States District Court for the Southern District of New York, which became effective in November 2011. Click here for a post on the Southern District of New York’s Pilot Program.
The state court EDO, which is required to be submitted in every case in the part, is meant to be completed by the parties after they “meet and confer” before the Preliminary Conference. The six-page EDO is comprehensive and covers preservation; cost, scope and form of production; privilege issues and inadvertent production. Counsel are also required to certify, among other things, that they are sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues related to electronic discovery or have brought someone to the meet-and-confer to address these issues.
Where New York’s Uniform Rules of Trial Courts have provided for optional consideration of e-discovery issues as deemed appropriate, the Pilot Program makes clear that consideration of these issues is mandatory and will be front and center, at least in Part 48. New York practitioners should not be surprised to see this program expanded to other parts in the future.
Paul E. Asfendis is a Director in the Gibbons Products Liability Department and a member of the Gibbons E-Discovery Task Force.