Relates to making changes to include the disclosure of electronically stored information in civil cases

Summary of provisions of bill

The proposed amendments would modify Article 31 as follows:

* CPLR 3120(1)(i) would be modified to explicitly recognize "electronically stored information" as a category of potentially discoverable information, along with "documents" or "things";

* CPLR 3120(2) would be modified to permit a party seeking discovery of electronically stored information to request production of such information in one or more specifically designated forms;

* CPLR 3122(a) would be modified (i) to permit a party, when objecting to a request for electronically stored information, to include any specific objection the party has to a requested form of production; (ii) to require the objecting/responding party to designate the form or forms in which the party proposes to produce electronically stored information, in cases where such party has objected to the requested form or forms-of production, or where no particular forms of production were specified in the request; and (iii) to clarify that, absent a court order, a party need not provide disclosure of electronically stored information that is not reasonably accessible due to undue burden or cost, and to provide a balanced procedure for handling disputes as to whether.such information is reasonably accessible;

* CPLR 3122 would be further amended to add a new CPLR 3122(e) specifying that, as a general practice, (i) production of electronically stored information shall be made either in the form in which such information is ordinarily maintained, or in a form that is reasonably useable by the party requesting such discovery, and (ii) a party need not produce electronically stored information in more than one form;

* CPLR 3122(b) would be amended to extend its provisions for identification of withheld materials to the production of electronically stored information;

* CPLR 3126 would be amended to include a limitation on sanctions in cases where information is lost through the routine, good-faith operation of an electronic information system; and

* CPLR 3131 would be amended to include electronically stored information among the types of materials that a party may request as a supplement to interrogatories.

Justification

Courts and commentators have repeatedly noted the sea change in litigation practice brought about as a result of electronic discovery. The proliferation of email and other kinds of electronically stored information in business and personal affairs, coupled with ever-increasing ease of dissemination and retention of such information, has vastly multiplied the volume of electronic material that can potentially meet the threshold requirements for discoverability in cases of even modest complexity. In some instances, the time and attention that is required to identify, preserve, collect, analyze, and produce electronic information is staggering; yet, in many such cases, the most relevant information can only be found through e-discovery.

The reaction to electronic discovery in the Federal courts has been sweeping and profound. The Federal courts have recognized that relevant, non-privileged electronic information is presumptively discoverable so long as it is reasonably accessible. Based on this principle, the Federal courts have adopted procedural rules to ensure that e-discovery issues are addressed at the outset by attorneys, the parties they represent, and the courts. Under federal practice, failure to comply with e-discovery obligations has at times led to significant sanctions, both for clients and for the firms who represent them. And attorneys have been confronted with a new kind of responsibility - the obligation to police the client's compliance with e-discovery obligations - that combines legal, ethical, and technical issues in new and challenging ways.

Thus far, these changes in federal practice and procedure have not been matched by any corresponding amendments to the CPLR. Some New York state courts have tried to provide guidance on the procedures for and permissible scope of e-discovery through individual decisions. See, e.g. Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908, 2006 N.Y. Misc. LEXIS 2232 (Sup. Ct. Nassau Co. 2006) (Warshawsky, J.); Weiller v. N.Y. Life Ins, Co., 800 N.Y.S.2d 359, 2005 N.Y. Misc. LEXIS 473, (Sup. Ct. N.Y. Co. 2005) (Cahn, J.); Lipco Electrical Corp. v. ASG Consulting Corp. 798 N.Y.S.2d 345, 2004 N.Y. Misc. LEXIS 1337 (Sup. Ct. Nassau Co. 2004) (Austin, ); Etzion v. Etzion, 796 N.Y.S.2d 844, 2005 N.Y. Misc. LEXIS 519 (Sup. Ct. Nassau Co. 2005) (Stack,).

In addition, the Commercial Division of the New York State Supreme Court has promulgated rules providing for the management of electronic discovery through early conferencing and inclusion of e-discovery issues in case management orders. See Rule 8(b) of the Rules of the Commercial Division of the Supreme Court, NYCRR 202.70. By their nature, these efforts could not (and did not) attempt to establish a comprehensive or uniform statewide practice for managing and conducting e-discovery; and while models for state-level rules of electronic discovery have been developed, see, e.g., Nat'l Conference of Commissions on Uniform State Laws, Uniform Rules Relating to the Discovery of Electronically Stored Information (2007), proposals either to adopt these Uniform Rules in New York or to incorporate any of their provisions into the CPLR are in early stages of development.

Legislative history

2009 (Weprin); A.6000: A. Codes

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the thirtieth day after it shall have become law.