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.
Tagged: Early Case Assessment
Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases
The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).
A panel of New York state and federal judges recently convened to discuss the differing standards between New York state and federal law governing the pre-litigation preservation of ESI and to make recommendations to resolve such inconsistencies. The panel’s findings are reported in the publication, Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in New York State and Federal Courts. The critical issue is determining when a litigant’s duty to preserve ESI is triggered, how that duty is fulfilled, and the potential consequences for breaching the duty. The panel recognized that the disparate treatment that litigants may receive in New York state courts versus federal courts could lead to a great deal of confusion and uncertainty, even for parties that cautiously implement ESI strategies with an eye towards future litigation. For example, the trend in New York federal courts has been in favor of the adoption of per se culpability when determining a litigant’s state of mind. In Zubulake, the court held that once the duty to preserve ESI attached, any destruction of documents would be, at a minimum, negligent. In Pension Committee, the court held that failure to issue a written litigation hold constituted “gross negligence.” State courts, on the other hand, have largely declined to adopt such per se rules, preferring instead to analyze a litigant’s culpability on a case-by-case basis, as the courts did in cases such as Deer Park and Ecor Solutions.
Earlier this month, 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.