The Office of Court Administration released guidelines Tuesday on obtaining electronic discovery from nonparties in the Commercial Division that are set to take effect Sept. 2.
An Aug. 8 order signed by New York’s chief administrative judge establishes a roadmap for litigators to follow without trumping any existing rules.
Collated under a new Commercial Division Rule 11-c and Appendix A, the guidelines are meant to facilitate early discussions between a party and nonparty on e-discovery requests, including potential costs to the nonparty and informal resolution of disputes without the need for judicial intervention.
The guidelines “represent the Commercial Division’s most recent effort to craft workable discovery rules in the era of Big Data,” Gary Mennitt, a partner at Dechert, wrote in a recent New York Law Journal column outlining the details ( “Comment Sought on Nonparty E-discovery Guidelines,” May 2).
Under Rule 11-c, parties seeking discovery are encouraged to scale their requests to consider factors such as the importance of the issues at stake, the amount in controversy, the availability of documents from another source, the level of accessibility as defined in applicable case law, and the expected burden and costs on the nonparty.
But litigators predict that this proportionality test could present challenges, at least at the outset.
“The proportionality factors will likely be the subject of motion practice until the bar becomes familiar with how the Commercial Division will apply the multi-factor balancing test,” Mennitt wrote.
In anticipation of this likelihood, the new protocol encourages a party and nonparty to confer about the scope of the request and use “informal mechanisms” to resolve disputes, turning to “motion practice only as a last resort.”
For instance, the protocol proposes use of a claw-back agreement to allow a nonparty to reclaim documents that have been inadvertently disclosed.
The approved guidelines incorporate a healthy dose of suggestions included in public comments to the proposed guidelines released in April. For instance, they emphasize that they are not mandatory requirements and “should be construed in a manner that is consistent with governing case law and applicable sections and rules of the Commercial Division rules, the Uniform Civil rules, the CPLR, and any other applicable rules and regulations.”
This change was adopted from a suggestion by the Electronic Discovery Committee of the New York State Bar Association’s Commercial and Federal Litigation Section, which noted in a May 22 comment to court administrators, there is “an overarching concern that practitioners and jurists may construe and apply the guidelines as if they create mandatory, new, independent duties and obligations with respect to e-discovery from nonparties. They should not be so construed.”
In addition, the protocol drafters removed an earlier section encouraging a nonparty to “promptly” issue a litigation hold when receiving an e-discovery respect. They replaced it with language encouraging the party making the request to “discuss with the nonparty” the possibility of a litigation hold.
“We received positive comments from both New York County Lawyers’ Association and the Commercial and Federal Litigation section. The Commercial and Federal Litigation section submitted some proposed changes and we actually implemented a number of those,” said Sharon Porcellio, member at Bond Schoeneck & King.
“We didn’t set out to change any rules. We really wanted to synthetize all the principles that already exist in the case law, in the CPLR and the unified court rules and just provide helpful guidelines to practitioners and courts,” added Joshua Blosveren, a partner at Hoguet Newman Regal & Kenney.
Porcellio and Blosveren drafted the guidelines as members of a technology subcommittee within a Commercial Division advisory group that is proposing changes to the division to make it more streamlined and efficient for litigators.