State courts are finally starting to take the very obvious need for parties to “meet and confer” at the outset of litigation seriously, modeling after many of the rules federal courts have made to address in the Federal Rules of Civil Procedure. On January 7, 2013, New York’s Unified Court System’s E-Discovery Working Group proposed expanding a preliminary e-discovery conference requirement that is currently limited to cases in the Commercial Division to all New York Supreme and County courts.

To date, 42 states have enacted rules that address e-discovery, but almost none as comprehensive as the Working Group’s proposal. Now, with a prominent state judicial system finally tackling an obvious need, it is likely that other state courts may take notice.

Summary of Proposed Revisions
The proposed revisions would require parties to discuss e-discovery issues before the preliminary conference in cases that are “reasonably likely” to involve e-discovery. To make this determination, the Working Group recommended that parties answer the following questions:

A. Does potentially relevant electronically stored information (“ESI”) exist;
B. Do any of the parties intend to seek or rely upon ESI;
C. Are there less costly or burdensome alternatives to secure the necessary information without recourse to discovery of the ESI;
D. Is the cost of preserving and producing ESI proportionate to the amount in controversy; and
E. What is the likelihood that discovery of ESI will aid in the resolution of the dispute.

In addition, the proposal does more than simply require the parties to meet. The revisions to Rule 202.12(c) suggest the following topics that parties should discuss during the conference:

(i) identification of potentially relevant types or categories of data;
(ii) disclosure of the applications and manner in which the data is maintained;
(iii) identification of potentially relevant servers, workstations or devices and their locations, whether maintained on site or off site;
(iv) implementation of a preservation plan for potentially relevant electronically stored information;
(v) identification of the individual(s) responsible for preservation [and] the scope, extent and form of production;
(vi) identification, redaction, labeling, and logging of privileged or confidential electronically stored information;
(vii) claw-back or other provisions for privileged or protected electronically stored information;
(viii) scope or method for searching and reviewing electronically stored information;
(ix) anticipated cost of data recovery and proposed initial allocation of such costs.

Ramifications
There are potentially interesting ramifications for litigants. Notably, the proposed changes echo the recent EORHB, Inc., et al v. HOA Holdings, LLC opinion, notably, provision (viii), which gives judges the power to “establish the scope of method for searching and reviewing electronically stored information.” (In EORHB, Judge Laster attempted to dictate the technology tool to be used – requiring parties to show cause why they should not use technology-assisted review, and directed the parties to use the same vendor.) This approach flies in the face of the judicial philosophy in Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., where Judge Noland stated during one of the hearings between the parties that “the defendant under Sedona 6 has the right to pick the method.”

Additionally, given that key to the success of newer technologies, like technology-assisted review, is dependent upon parties’ and the courts’ understanding of how such technology works, what other methods might be used in conjunction (such as keyword search), and how and why it is defensible, this proposal reinforces the need to find “a client representative or outside expert to assist” in the mandatory discussions required by the court. The rules already require conference attendees to be “sufficiently versed in matters relating to their clients’ technological systems” so they can “discuss competently all issues relating to electronic discovery.”

If these proposed rules are adopted, parties in New York courts will need to give serious consideration to e-discovery issues even earlier in the case. Parties should pay particular attention to identifying the technology and methods they intend to use for search and review and consult with e-discovery experts as necessary; if they fail to do so, they will be inviting judicial intervention in discovery.

Chris O’Brien is chief operating officer at Xerox Litigation Services. He can be reached at cobrien@xls.xerox.com.

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