New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle A - JUDICIAL ADMINISTRATION › Chapter II - UNIFORM RULES FOR THE NEW YORK STATE TRIAL COURTS › Part 202 - Uniform Civil Rules for the Supreme Court and the County Court › Section 202.70 - Rules of the Commercial Division of the Supreme Court › Rule 202.70.11-c - Discovery of Electronically Stored Information

Current through
					 Register Vol. 46, No. 28, July 10, 2024
(a) Parties and nonparties should consult the
					 Commercial Division's Guidelines for Discovery of Electronically Stored
					 Information ("ESI'') (the "ESI Guidelines''), which can be found in Appendix A
					 to these Rules of the Commercial Division. The ESI Guidelines are advisory and
					 should be applied to the extent appropriate under the circumstances.
(b) Prior to the preliminary conference,
					 counsel shall confer with regard to electronic discovery topics, including
					 those set forth in the ESI Guidelines. Topics on which the parties cannot agree
					 shall be addressed with the court at the preliminary conference.
(c) Requests for the production of ESI may
					 specify the format in which ESI shall be produced, to which the responding
					 party may object. In the absence of such specification, or agreement among the
					 parties or court order, the production of electronic documents shall be in the
					 form in which it is ordinarily maintained, or in a searchable format that is
					 usable by the party receiving the ESI.
(d) The costs and burdens of discovery of ESI
					 shall be proportionate to its benefits, considering the nature of the dispute,
					 the amount in controversy, and the importance of the materials requested to
					 resolving the dispute. A court may deny or modify disproportionate requests or
					 order disclosure on condition that the requesting party advance the reasonable
					 cost of production to the other side, subject to the allocation of costs in the
					 final judgment.
(e) The requesting
					 party shall promptly defray the reasonable expenses associated with a
					 nonparty's production of ESI, in accordance with CPLR 3111 and
					 3122(d).
(f) The parties are
					 encouraged to use efficient means to identify ESI for production, which may
					 include technology-assisted review in appropriate cases. The parties shall
					 confer, at the outset of discovery and as needed throughout the discovery
					 period, about technology-assisted review mechanisms they propose to use in
					 document review and production.
(g)
					 Inadvertent or unintentional production of ESI or documents containing
					 information that is subject to the attorney-client privilege, work product
					 protection, or other generally recognized privilege shall not be deemed a
					 waiver in whole or in part of such privilege if the producing party (i) took
					 reasonable precautions to prevent disclosure, and (ii) after learning of the
					 inadvertent disclosure, promptly gave notice either in writing, or later
					 confirmed in writing, to the receiving party or parties that such information
					 was inadvertently produced and requests that the receiving party or parties
					 return or destroy the produced ESL Upon such notice, or as otherwise required,
					 the receiving party or parties shall promptly return or destroy all such
					 material, including copies, except as may be necessary to bring a challenge
					 before the Court. The parties may extend or modify the protections and duties
					 of this provision by written agreement, as provided in Rule 11-g(c), which
					 shall be submitted to the Court to be ordered. Nothing in this rule shall
					 abridge a lawyer's obligations under Rule 4.4(b) of the New York Rules of
					 Professional Conduct concerning a lawyer's receipt of documents that appear to
					 have been inadvertently sent.
(h)
					 Consistent with CPLR 3126, a party should take reasonable steps to preserve ESI
					 that it has a duty to preserve.