New York State Courts Look to Adopt Rules Requiring Parties to Discuss E-Discovery at the Outset of Litigation

The E-Discovery Working Group has recommended changes to the New York State Court rules concerning e-discovery that would significantly expand litigants’ obligations to confer concerning anticipated e-discovery issues. Currently, only the rules that govern cases pending before the Commercial Division require that parties confer about expected e-discovery issues at the outset of a litigation. (See Section 202.70 Rule 8 of the Uniform Rules). The E-Discovery Working Group has not only recommended that this rule be expanded to include all New York State Courts, but also to provide specific guidance concerning what e-discovery issues ought to be discussed by the parties. These issues include identifying potentially relevant categories of data and relevant computer servers, implementing measures to preserve relevant information, agreeing to procedures for parties to recall any privileged information that they provide by accident and discussing the likely cost and allocation of e-discovery between the parties.

While these e-discovery issues, and the need to discuss them at the early stages of a litigation, should not be viewed as novel concepts to those that regularly practice before the Federal Courts, the State Courts have been slower to adopt these guidelines. By discussing and preparing for these issues at the outset of a case, litigants may be able to avoid costly and difficult e-discovery disputes later in a case.

Paul A. Saso is a Director in the Gibbons Business & Commerical Litigation Department and a member of the Gibbons E-Discovery Task Force.