The Office of Court Administration yesterday sought public comment on a proposal to expand the rule for addressing e-discovery issues in Commercial Division cases, and to extend that rule to cases where e-discovery is likely in all of the state’s trial courts. The proposal is posted at Court Notes.

Section 202.70 Rule 8 of the courts’ Uniform Rules already requires that in Commercial Division cases parties consult with each other at the beginning of a case about the e-discovery issues they anticipate. The new proposal would add language detailing what kind of e-discovery issues should be discussed. The issues include identifying potentially relevant categories of data; identifying the relevant computer servers; implementing measures to preserve relevant information; agreeing to a “claw back” procedure for parties to recall any privileged information that they provide by accident; and estimating the cost of e-discovery and agreeing on the initial allocation of that cost.

The proposal would also implement §§202.12(b) and 202.12(c)(3) of the Uniform Rules to require parties in all New York trial courts to consult with each other at the beginning of the case that is likely to include e-discovery. The proposed amendment lays out guidelines for deciding whether a case is likely to involve e-discovery, including whether relevant electronically stored records exist, whether the parties intend to use it and whether the cost of e-discovery is proportionate to the amount in controversy.

The proposed amendment to §202.12 also includes language similar to the proposed amendment to §202.70 about what kinds of issues parties should discuss. The proposal originated with the E-Discovery Working Group, a group of attorneys tasked with producing recommendations on e-discovery issues in the state.