Monkey See, Monkey Do? Like Federal Courts, New York State Courts Are Changing the Rules Governing E-Discovery

As new and proposed rules regarding e-discovery in the Commercial Division of the New York State Supreme Court demonstrate, state courts are catching up to the federal courts in terms of e-discovery standards and guidelines for the preservation and production of electronically stored information (ESI).

On June 2, 2014, a new Rule 9 took effect in the Commercial Division that allows parties to consent to accelerated pre-trial procedures—in effect, creating a “Rocket Docket” for all except class action litigators. Where parties consent, Rule 9 operates to conclude “all pre-trial proceedings, including all discovery, pre-trial motions and mandatory mediation” within nine months of the filing of a Request for Judicial Intervention in an action. With respect to e-discovery, the new rule seeks to eliminate e-discovery disputes by requiring parties to produce electronic documents in a searchable format, to tailor the custodians whose ESI will be collected to those who reasonably may be expected to possess “evidence that is material to the dispute,” and to impose sanctions such as the denial of discovery or the imposition of reasonable production costs if the “costs and burdens of e-discovery are disproportionate” to the nature of the dispute, the amount in controversy, or the relevance of the materials requested.

Meanwhile, a proposed rule in the Commercial Division would impose certain e-discovery “guidelines” on non-parties. The guidelines, which would not modify existing case law or replace any related rules, seek to promote the goals of efficiency, early assessment of potential burdens on non-parties to reduce those burdens, identification of costs borne by the requesting party, and cooperation to resolve disputes without court involvement. As the Commercial Division regularly decides high-stakes complex cases and subpoenas often involve non-parties, litigators will watch the development of these proposed guidelines closely.

The timing of these developments is intriguing: the Commercial Division Rules are evolving just as the Judicial Conference’s Standing Committee on Rules of Practice and Procedure approved amendments to the Federal Rules of Civil Procedure at the end of May. It will be interesting to see whether other state courts follow the lead of the federal courts and propose similar amendments.

Matt Mohwinkel is vice president at Conduent. He can be reached at info@conduent.com.