New York State Court Rules on Third Party ESI Request

In August 2014, the Chief Administrative Judge of the New York State implemented Rule 11-c for the Uniform Rules for the Supreme and County Courts of the State of New York which requires parties to adhere to guidelines for ESI discovery from nonparties stated in an appendix to the rule.

The guidelines specify the following:

1. The requesting party and the nonparty are encouraged to discuss ESI discovery issues as early as possible.

2. Nonparties from which ESI is sought should be contacted to discuss the implementation of a litigation hold.

3. ESI discovery requests from a nonparty must be proportional taking into account:

a. the importance of the issues at stake.

b. the amount in controversy.

c. the importance of the ESI.

d. availability from other sources.

e. the accessibility of the ESI.

f. the burden and cost.

4. Discovery motions are discouraged. The party must meet and confer with the nonparty, and can conduct a conference with the law clerk, a special referee or a mediator.

5. The requesting party must pay the costs of the nonparty's counsel; e-discovery consultations; electronic discovery itself (identification, preservation, collection, processing, relevancy review, and production are specifically mentioned); and privilege logs.

6. The requesting party may also have to pay for quantifiable costs from disruptions to business operations.

Rhode Island Makes It Easier to Get an Expert's Documents

Paralegals often spend a lot of time tracking down materials cited in expert reports. In addition to produced documents and deposition testimony taken in the case the report is prepared for, experts often also rely on other documentation which is difficult to locate if it is indeed publicly available. Four years ago, the Supreme Court of Rhode Island issued a decision, Cashman Equip. Corp. v. Cardi Corp., 139 A.3d 379 (R.I. 2016), which found that a lower court correctly denied a motion to compel all documents considered by an expert in his written opinion. The Court concluded that, "Our review of the language of Rule 26(b)(4)(A) leads us to the ineluctable conclusion that that rule is indeed clear and unambiguous . . . It does not provide for the disclosure of documents. " Id. at *382-83. Rule 26 had only specified that interrogatories can be submitted regarding expert witnesses, and that expert witness can be deposed. The Court noted its strong policy in favor of safeguarding the work product of expert witnesses.

Thursday, an order was issued amending Rule 26(b)(4)(A) to include the following, "A party may, through a request for production pursuant to Rule 34, a request attached to a notice of deposition pursuant to Rule 30(b)(5), or subpoena duces tecum pursuant to Rule 45, require any other party to produce all documents and materials relied upon by a person whom the other party expects to call as an expert witness at trial in formulating that expert's opinion(s). If documents and materials are requested, the procedures of Rules 34 and 45, respectively, shall apply to the request." In re Amendments to the Superior Court Rules of Civil Procedure, 2020 R.I. LEXIS 74, at *4-5 (Dec. 10, 2020).

In Rhode Island the Rules of Civil Procedure are amended when a majority of the members of the Rhode Island Superior Court make a recommendation to the Rhode Island Supreme Court that the Supreme Court approves.

Using Facebook to Transmit PHI Violates VA Rules

Last month, Magistrate Judge Eric Long issued a decision, Cook v. U.S. Dep't of Veteran Affairs, No. 19-2119, 2020 U.S. Dist. LEXIS 231763 (C.D. Ill. Nov. 12, 2020), affirming a decision by a disciplinary board of the Department of Veteran Affairs to remove Cook from federal employment. Cook was employed as a physician, and the reasons for his dismissal included using Facebook Messenger to consult a patient about her ailments and send her information about her prescriptions. Cook also had sexual intercourse with the patient. Departmental rules require that encryption products be used to provide access to sensitive information. The rules required Cook to only post "sensitive information to web-based collaboration tools restricted to those who have a need-to-know and when proper safeguards are in place for sensitive information." Id. at *15 (citing R. 307).

One of the reasons why Cook requested that his dismissal be reversed was that the board's findings were not supported by substantial evidence. His bases for this assertion included the fact that he did not initiate the contact with the patient through Facebook. Judge Long concluded that, "Cook implicitly encouraged Patient A to contact him through Facebook because he continued to offer medical advice and refill prescriptions through Facebook from October 2017 until May 2018. " Id. at *16. The fact that Facebook was not an encryption application approved by the Department of Veterans Affairs and Cook's failure to take measures to safeguard the patient's information constituted substantial evidence to support his dismissal.

You have to wonder if the Court would have ruled differently if Cook had enabled end-to-end encryption - a feature which is available for Facebook Messenger.