New York State Unified Court System Issues Request for Comment on New Commercial Division ESI Rules | Patterson Belknap Webb & Tyler LLP

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On September 7, 2021, the New York State Unified Court System issued a request for comment on proposed additional rules and guidelines for electronically stored information (“ESI”). According to the proposal, “[t]The aim of the revisions is to approach e-discovery in a more consolidated way, to change the rules for clarity and consistency, to expand the rules to deal with important ESI topics in accordance with the CPLR and the case law, and provide more detail in Annex A – ESI Guidelines Proposal than is practical in the Commercial Division rules.

The first proposed amendment contains significant additions to Rule 11. More specifically, the amended rule would provide that the parties are to consult on eDiscovery before the initial conference and specifically states that eDiscovery will be discussed at any conference. initial. The proposed rule changes also address efficiency and cost with respect to electronic discovery. The amended rule would provide that “[t]The costs and burdens of ESI should not be disproportionate to its benefits ”and adopts a cost-benefit analysis similar to the Federal Court standard. The amended rule also encourages parties to use technology-assisted review, where appropriate. Finally, the amended rule adds a clawback provision for inadvertently produced ESIs that are subject to either solicitor-client privilege or work product doctrine.

The second major change proposed relates to Annex A of Commercial Division Rule 11-c, which currently deals only with the CSE of non-parties. The changes to Annex A would replace the non-party guidelines “with new guidelines to cover all aspects of CSE, both parties and non-parties”. The drafters of the proposal developed these guidelines based on “the rules and practices set out in the ESI guidelines of several federal district and state courts, federal and New York adjudication laws, and comments published by the Sedona conference. “.[1]

Specifically, the newly proposed ESI guidelines (1) encourage early discussion of CSE; (2) limit discovery requests to what is commensurate with the needs of the case; (3) encourage informal resolution of disputes regarding CSE; and (4) provide that the requesting party is to pay reasonable production costs to non-parties. The changes also include general guidance on a number of specific issues relating to ESI, including: (1) the importance of technical competence in electronic discovery; (2) the lawyer’s obligation to actively assist in the preservation, collection, search, examination and production of CSE; (3) defensible preservation and collection of sources of CSE; (4) the processes for determining whether the CSE is “not reasonably assessable”; (5) processes for determining acceptable formats for ESI production; and (6) a salvage provision for inadvertently generated documents.

The remainder of the proposed changes serve to streamline the rules and correct the references based on the proposed changes. A full copy of the proposed changes is available here. The court system requested comment by November 8, 2021.


[1] The Sedona Conference is a non-partisan, non-profit 501 (c) (3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust, complex litigation, rights intellectual property and data security and privacy law. The Sedona Conference Task Force is considered an authority on eDiscovery in the United States and around the world.


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