NYSBA Publishes Guidelines for “Best Practices In E-Discovery”

The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued a Report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The Report offers fourteen (14) “Guidelines” for the New York litigator dealing with ESI, and includes a helpful glossary and bibliography. The Report provides a brief and straightforward interpretation of the current state of e-discovery law and recommendations on how to “best” navigate that current landscape.

The Guidelines are summarized and then briefly explored by the Committee. They address the following topics: when the duty to preserve arises and what to preserve (Guideline Nos. 1 and 2); issuance and content of legal hold notices, requests for production (and objections thereto) and subpoenas (Guideline Nos. 3 and 6); counsel’s duty to make the discovery process more cooperative and collaborative (Guideline No. 4); familiarity with a client’s information technology (Guideline No. 5); common ESI issues and practical advice throughout a litigation’s life, including: (a) initial review; (b) search for and collection of ESI; (c) processing of ESI to eliminate duplicates and render it searchable; (d) further culling the ESI to reduce volume; (e) review by counsel; and (f) production (Guidelines 7 – 11); familiarity with ESI costs and cost-shifting burdens (Guidelines 12 and 13); and the consequences of a failure to preserve relevant ESI (Guideline 14). The Guidelines emphasize throughout the importance of informed counsel and a cooperative meet and confer process as critical to fruitful and cost-effective e-discovery.

In sum, this “best practices” report is targeted more to the novice e-discovery practitioner and succeeds as an elementary, but helpful primer for New York litigators who wish to become better acquainted with these issues. While more experienced practitioners will not find much new information here, the guidelines present an excellent basic checklist of common e-discovery concepts and issues that arise in state and federal court litigations. In a jurisdiction like New York, where, at least on the state court level, existing rule-based guidance in these areas is minimal, guidelines such as these are always welcome and useful.