State courts are savvy to issues concerning the discovery of electronically stored information (ESI), and recent trial decisions offer practical and pragmatic rulings on ESI. Although rarely stated, a reality known to—and often grudgingly admitted by—every litigator was articulated by the court in MBIA Ins. v. Credit Suisse Sec. (USA),1 where it observed that a party “cannot reasonably expect to uncover every single instance” relating to a specific event. No doubt with that understanding in mind, courts are addressing parties’ concerns as to burdensome and overbroad requests seeking the production of ESI that is not predicated on the specific allegations of a party’s claim. The failure to implement appropriate litigation holds is not being tolerated, with courts finding that they should have been implemented, but then trying to balance such failure with true prejudice to the complaining party in order to determine the degree of the spoliation sanction. Email discovery and the use of emails are now standard litigation practice, and recent decisions are making clear that emails should be produced in a searchable format and that non-parties should not be absorbing the cost of burdensome ESI discovery. Use of emails also should not be taken for granted as a ground upon which to move to dismiss, as a matter of law, based on “documentary” evidence under CPLR Rule 3211(a)(1).
Finally, as privacy concerns over electronic communications are driving ESI litigation, the recent trial court decision in New York Eye Surgery Assoc. v. Kim,2 makes clear that it is difficult to dismiss, as a matter of law, a well-pleaded claim under the federal Computer Fraud and Abuse Act and the Stored Communications Act, where there are competing claims as to whether the employer was “authorized” to “access” an employee’s ESI.
