Recently, the NY Supreme and County courts addressed the topic of electronic discovery at the preliminary conference. The Court issued a Notice amending Section 202.12(b) of the Uniform Rules as well as Rule 1(b) of section 202.70(g) and requiring that in any case “reasonably likely to include electronic discovery” counsel must come to court “sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery” and may bring a client representative or outside expert to assist in such discussion. A list of some of issues that may be addressed at the preliminary conference stage can be found in 22 NYCRR Section 202.12(c)(3) and includes electronic data retention, a discovery preservation plan, redaction of privileged electronic data, the scope and form of electronic production, anticipated costs, and the identification of individuals responsible for data preservation.
The NY Commercial Division rules at 22 NYCRR Section 202.70(g) and Rule 8(b) contain a similar list and even includes topics such as the identification of experts. There is no question that counsel appearing for a preliminary conference in NY Supreme or County court must have meaningful discussions with their clients concerning electronic discovery and the clients’ technological systems prior to such conference with the court. Having these critical discussions at the outset of a case will benefit both the counsel and the client and will help lead to the early identification of any significant problems that might arise later on during the electronic document and data production phase of a litigation.