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.
