The era when a lawyer can competently practice without understanding a client’s electronic data is rapidly drawing to a close. New York’s Office of Court Administration has recommended amendments to the rules governing preliminary conferences in non-Commercial Division cases that should radically reduce the number of cases where one can stand in front of a judge like Saturday Night Live’s fabled unfrozen caveman lawyer, proudly ignorant of electronic discovery issues.1 The proposed amendments, which were published for comment on Jan. 7, 2013, would extend the requirement that counsel meet and confer on e-discovery-related issues to every case in New York Supreme and County Court that is "reasonably likely" to involve e-discovery.2 The proposed amendments also provide some guidance to litigants and the court as to what cases are "reasonably likely" to involve e-discovery. This is important because counsel in such cases must be "sufficiently versed in matters relating to their clients’ technological systems" to be able to discuss them competently. The proposed amendments also include some revisions to the list of e-discovery-related topics and issues that should be discussed prior to the preliminary conference in both Commercial and non-Commercial Division cases.
The proposed amendments are the latest step in New York’s three-year effort to modernize its court rules to address e-discovery-related issues, and in some ways they place New York ahead of the curve. On the other hand, other unique and long-standing New York procedural requirements can offer potential barriers to efficiency. In any event, the age of the unfrozen caveman lawyer is waning.
When adopted in January 2006, the Uniform Commercial Division Rules included the requirement in Rule 8(b) that parties in Commercial Division cases meet and confer on a list of e-discovery-related topics prior to the preliminary conference. The Commercial Division Rules further required that those topics "shall be addressed with the court at the preliminary conference."3 In March 2009, the same list of e-discovery-related topics was imported into New York’s Uniform Rules of the Trial Courts in Rule 202.12(c) as a list of issues that could be considered at a preliminary conference "[w]here the court deems appropriate."4 In contrast to the Commercial Division Rules, there was no requirement that the parties meet and confer on these issues in advance of the conference.
In February 2010, a Report to the Chief Administrative Judge titled " Electronic Discovery in the New York State Courts" recommended a number of changes to New York’s e-discovery practices and procedures.5 Citing a concern that "parties usually show up at the initial conference with little to no preparation regarding e-discovery, and that the subjects that are required to be covered by the rule are merely glossed over," the report recommended improvements to both Rule 8(b) and Rule 202.12 in order to give the preliminary conference requirements some teeth.6
Following the recommendations in the E-Discovery Report, on July 27, 2010, Commercial Division Uniform Rule 1 was amended to require, for all cases, that counsel appearing at the preliminary conference "shall be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery." The same requirement was imposed on all non-Commercial Division cases that were "reasonably likely to include electronic discovery."7 The new rule did not, however, offer any guidance on what would make a case "reasonably likely to include electronic discovery," and, in contrast to Commercial Division Rule 8(b), there was still no requirement that the parties meet and confer in advance of the preliminary conference on e-discovery issues (although certainly there was every incentive for counsel to do so in order to avoid appearing unprepared or being surprised at the preliminary conference).
The proposed amendments would remedy both of these issues in the Uniform Rules of the Trial Courts. First, they would add a requirement to Rule 202.12(b) that (for cases reasonably likely to include e-discovery), "counsel shall, prior to the preliminary conference, confer with regard to any anticipated electronic discovery issues."8
Second, Proposed Rule 202.12(b)(1) would also provide the parties some guidance as to what makes a case "reasonably likely to include electronic discovery," specifically:
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?
E. What is the likelihood that discovery of ESI will aid in the resolution of the dispute?9
Third, the proposed amendments would revise the list of e-discovery-related topics to be addressed at the preliminary conference (currently set forth in Rule 202.12(c)) for cases reasonably likely to involve e-discovery, and make a conforming change to Commercial Division Rule 8(b). The new list of topics requires parties to identify not simply "the computer systems utilized" by the client (which is the case under the present version of the rules), but more specifically the "potentially relevant servers, workstations or devices and their locations, whether maintained on site or off site."10 The revised list also includes, for the first time, the question of whether "clawback agreements" governing the inadvertent production of privileged documents are appropriate. Significantly, there is nothing in the proposed rules that requires the parties to enter into a clawback agreement or outlines the circumstances under which such an agreement would be appropriate.
Closer Conformity to the Federal System
If these amendments are approved, the Uniform Trial Court Rules will move another step closer to conformity with the Federal Rules of Civil Procedure. Those rules were amended in 2006 to include a number of provisions specifically targeted at e-discovery, among the most important of which were changes to Rule 26 requiring the parties to meet and confer in advance about a discovery plan that must state the parties’ views on "any issues about disclosure or discovery of electronically stored information."11 Federal Rule 26 requires that issues concerning e-discovery be discussed in every case. While New York’s proposed amendments only require the parties to discuss e-discovery-related topics in advance of the preliminary conference in cases where e-discovery is "reasonably likely," they are an improvement over the current standard that, in cases brought outside of the Commercial Division, only requires the discussion of such topics at—not before—the preliminary conference "where the court deems appropriate."12
That said, the meet and confer requirement of Fed. R. Civ. P. 26 has drawn criticism along the lines that it is a practice observed in the breach. During a mini-conference on proposed changes to the Federal Rules in September 2011, some attendees observed that despite the clear language of the rule, some parties fail to address e-discovery topics during the conference.13 By including a more specific list of topics that must be addressed in "appropriate" cases, and through the existing requirement that counsel be "sufficiently versed" in the client’s technological systems (a requirement not found in the Federal Rules), if enacted the proposed amendments to New York’s court rules may turn out to be more effective than Federal Rule 26.14 After all, they would require that in every case, counsel must learn at least enough about the client’s available ESI to determine whether e-discovery is "reasonably likely."
Timing Is Everything
As any practitioner knows, issues concerning the preservation, the sources of discovery, and the form of production of ESI are best addressed early in a case. The Federal Rules of Civil Procedure require that the parties conduct their Rule 26(f) conference 21 days before the scheduling conference takes place or the scheduling order required by Fed. R. Civ. P. 16 is due. Rule 16 requires that the scheduling order be issued "as soon as practicable," and the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. This at least sets an outside boundary as to how long the parties can forestall having the required conversation about e-discovery issues. Even so, some have criticized the Rule 26(f) conference as coming too late in the lifespan of a case to properly address preservation issues.15 Indeed, at least one U.S. district court has mandated that "[a] party seeking discovery of ESI should notify the opposing party of that fact immediately."16
In New York, although the parties can request a preliminary conference at any time after service of process, there is no requirement as to when, or how late, the preliminary conference can take place. The only timing requirement with respect to the preliminary conference is that it must take place "not more than 45 days" after a request for judicial intervention (RJI) is filed.17
In complex cases, one of the parties may choose to file an RJI sooner rather than later in order, for example, to have the case quickly assigned to the Commercial Division.18 But there is no requirement that an RJI be filed before discovery is served or before the parties begin to respond to discovery. As one commentator has observed, the absence of a deadline by which a case must be assigned to a judge seems to be at odds with the policy goal of providing increased judicial oversight and case management:
In light of the commence by filing system and the goal of greater judicial supervision of cases in the pre-note of issue that underlies the DCM [Differentiated Case Management] system that is now widely used in New York courts, consideration should be given to changing the rule regarding the time for assigning cases to a judge.19
Because the preliminary conference is tied to the filing of an RJI, there is no guarantee that the parties will have their preliminary conference at the early stages of a case.
Yet that seems to be the purpose of the proposed amendments. As the February 2010 Report to the Chief Administrative Judge concluded, "there remains substantial agreement that e-discovery disputes are best addressed when raised early on in the case, with judicial oversight and involvement…. [I]f parties and their counsel are forced to examine e-discovery issues from the outset, there are more opportunities to avoid the more complex and potentially intractable disputes that can arise later in the case."20 And while some may at least feel reassured that data destruction is not an issue given last year’s decision in Voom v. Echostar21—where the First Department endorsed Zubulake‘s "reasonably anticipates" standard for electronic data preservation—we would not be so sanguine. Remember, it is the unfrozen caveman lawyer on the other side about whom you need to worry; and the potential for sanctions cannot take the place of actual evidence.
A party that is concerned about their adversary’s treatment or search of ESI can of course file an RJI in order to trigger the preliminary conference. If the goal, however, is to force the early assessment of ESI issues by parties that ordinarily would not consider to do so on their own, in this one respect the proposed amendments fall short. Without a change requiring RJIs to be filed within a certain time (or a change requiring the preliminary conference to take place within a certain time), there is significant risk that even with these proposed amendments, cases "reasonably likely" to involve e-discovery will have preliminary conferences far too late to address some of the most crucial issues concerning electronically stored information.
Nonetheless, even without a mandatory early preliminary conference, the proposed amendments are a laudable step forward in the evolution of New York state’s e-discovery rules, with the potential to put the last unfrozen caveman lawyers among us back on ice.
Michael B. de Leeuw is a partner in the litigation department of Fried, Frank, Harris, Shriver & Jacobson. Eric A. Hirsch is a special counsel whose practice focuses on electronic discovery issues.
2. Jan. 7, 2013 Proposed Uniform Rules of the Trial Courts, available at http://www.nycourts.gov/rules/comments/PDF/Rule202-12(b)PC-packet.pdf (Proposed Uniform Rules). This requirement is already in place for all Commercial Division cases.
3. Commercial Division Rule 8(b).
4. Uniform Rules of the Trial Courts 22 NYCRR §202.12(c)(3).
5. "A Report to the Chief Judge and Chief Administrative Judge, Electronic Discovery in the New York State Courts" (February 2010), available at http://www.courts.state.ny.us/courts/comdiv/PDFs/E-DiscoveryReport.pdf (E-Discovery Report).
6. Id. at 13.
7. Administrative Order of the Chief Administrative Judge of the Courts, July 27, 2010 (AO/468/10); see also Uniform Rules of the Trial Courts 22 NYCRR §202.12(b).
8. Proposed Uniform Rules, supra note 3, 22 NYCRR §202.12(b) (emphasis added).
9. Id. §202.12(b)(1).
11. Fed. R. Civ. P. 26(f)(3)(C).
12. Uniform Rules of the Trial Courts 22 NYCRR §202.12(c)(3).
13. Mini-Conference on Preservation and Sanctions, Dallas, Tex. (Sept. 9, 2011), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_Materials/Notes from the Mini-Conference on Preservation and Sanctions.pdf.
14. The U.S. district courts are, of course, free to enact local rules with enhanced requirements, and in November 2011 the U.S. District Court for the Southern District of New York started a pilot program for complex cases that requires counsel, in cases referred to the program, to complete a detailed e-discovery case management order and "certify that they are sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to e-discovery, or have involved someone competent to address these issues on their behalf." In re Pilot Project Regarding Case Management Techniques for Complex Civil Cases, available at http://www.nysd.uscourts.gov/cases/show.php?db=notice_bar&id=261.
15. See Thomas Y. Allman, "Preservation Rulemaking After the 2010 Litigation Conference," available at http://media01.commpartners.com/acc_webcast_docs/Summary.pdf (July 17, 2010); Kenneth J. Withers, "’Ephemeral Data’ and the Duty to Preserve Discoverable Electronically Stored Information," 37 U. Balt. L. Rev. 349, 377 (Spring 2008). Although the Federal Rules Advisory Committee recently circulated a proposed amendment to Fed. R. Civ. P. 37, addressing sanctions for the failure to preserve relevant information, there are no current proposals to change the timing of the Rule 26(f) conference.
16. U.S. District Court, District of Kansas Guidelines for Discovery of Electronically Stored Information, Guideline 3, available at http://www.ksd.uscourts.gov/guidelines-for-esi/ (emphasis added).
17. Uniform Rules of the Trial Courts 22 NYCRR §202.12(b). For those unfamiliar with the process, in contrast to the federal system, cases filed in New York state court are not automatically assigned to a judge. Instead, parties must file a request for judicial intervention under Uniform Trial Court Rule §202.6. Significantly, there is no requirement that the RJI be filed by any set number of days after a complaint is filed or process is served.
18. See Uniform Rules of the Trial Courts 22 NYCRR §202.70(d), (e).
19. 7 Jack B. Weinstein, Harold L. Korn, Arthur R. Miller, New York Civil Practice: CPLR ¶3401.05 (David L. Ferstendig ed., 2d Ed., 2005).
20. E-Discovery Report, supra note 5, at 13.
21. 939 N.Y.S.2d 321 (App. Div. 1st Dept. 2012).