The Unified Court System’s E-Discovery Working Group has proposed amending 22 N.Y.C.R.R. § 202.12 of the Uniform Rules of the Trial Courts to require that attorneys confer on anticipated electronic discovery prior to the Preliminary Conference whenever electronic discovery is “reasonably likely.” This requirement already exists in the Commercial Division, where all cases presumptively involve electronic discovery. The purpose of expanding the requirement to non-Commercial Division cases is to identify and address any electronic discovery disputes early, so as to avoid discovery motion practice that can arise later in the case.

Presently, attorneys handling non-Commercial Division cases must only be “sufficiently versed in matters relating to their client’s technological systems” in order to discuss electronic discovery at the Preliminary Conference. The proposed amendments, however, will require that for both Commercial Division cases as well as non-Commercial Division cases in which it is “reasonably likely” to include electronic discovery, counsel must confer with regard to electronic discovery issues prior to the Preliminary Conference.

The proposed amendments offer a “non-exhaustive” list of considerations to determine what makes a non-Commercial Division case “reasonably likely” to include electronic discovery, including:

i) Does potentially relevant electronically stored information exist?

ii) Do any of the parties intend to seek or rely upon electronically stored information?

iii) Are there less costly or burdensome alternatives to secure the necessary information without recourse to discovery of electronically stored information?

iv) Is the cost of preserving and producing electronically stored information proportionate to the amount in controversy?

v) What is the likelihood that discovery of electronically stored information will aid in the resolution of the dispute?

Once it is determined that a case is reasonably likely to include electronic discovery, the question becomes: how familiar must attorneys be with their clients’ electronic data? Currently, an attorney must merely be knowledgeable of the client’s “technological systems.” The proposed amendments, however, require that an attorney be knowledgeable about the client’s “potentially relevant servers, workstations or devices and their locations, whether maintained on site or off site.” Additionally, to establish the method and scope of electronic discovery, the proposed amendments provide a “non-exhaustive” list of electronic discovery issues which the Court may consider, including the identification of potentially relevant categories of data; the applications in which the data is maintained; the person responsible for preserving the data; the scope and method of data searches; claw-back provisions for protected information; and the allocation of the cost for data recovery.

If the proposed rules are enacted, electronic discovery issues will be seriously considered and addressed early in the litigation. In turn, future motion practice could be avoided and the possibility of data destruction minimized. With this in mind, lawyers may be looking for an ediscovery company now, so that they are ready with the appropriate software when this comes into play.

We will keep you informed on the status of the proposed amendments, whether additional changes to the amendments are proposed, and whether the proposed amendments are enacted. Should you have any questions on the ramifications of the proposed amendments to Rule 202.12 of the Uniform Rules of the Trial Courts, please contact us.