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New York State's Bench Book on ESI

The Bench Book for New York State Judges Pertaining to the Discovery of Electronically Stored Information is a reference guide prepared for New York judges by the NYS working group on electronic discovery. There's a good chance that a New York judge will review this resource prior to ruling on ESI issues.

In New York, these are some key rules that cover the electronic discovery process:

1. Commercial Division Rule 1 requires that attorneys know about their client's tech systems or bring an expert who is to the preliminary conference.

2. Commercial Division Rule 8(b) directs the parties to meet and confer on ESI issues before the preliminary conference.

3. Commercial Division Rule 11-b addresses privilege logs.

4. Commercial Division Rule 11-c covers discovery from non-parties.

5. CPLR 3120 form of production

6. CPLR 3102 authorize pre-commencement discovery in bringing an action or preserving information.

7. CPLR 3126 concerns sanctions for the spoliation of ESI.

The Bench Book cites VOOM HD Holdings LLC v EchoStar Satellite LLC, 93 AD3d 33, 41 (1st Dept 2012), with respect to when a litigation hold is necessary, "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents." It notes that CPLR 3102 can be used to preserve ESI of a party or non-party. It also cites VOOM with respect to self-collection of ESI, "where a party is a large company, it is insufficient, in implementing such a litigation hold, to vest total discretion in the employee to search and select what the employee deems relevant without the guidance and supervision of counsel."

The Bench Book notes that in issuing a preservation order the court should not only consider ESI types, production formats, and the cost of discovery, but also the extent to which preservation will 'interfere with the ordinary course of the responding party's business operations.'

The Bench Book cites U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 94 AD3d 58, 62 (1st Dept 2012), as the controlling authority for the position that it's the responding party that bears the cost for searching for, retrieving, and producing ESI. It notes that the courts have discretion under CPLR 3103 and 3104 to allocate the costs of production and lists the 8 factor cost shifting test of Rowe v. William Morris, and 7 factor cost shifting test of Zubulake v. UBS Warburg .

Rule 11-b's preference for the categorical logging of privileged documents, as opposed to document-by-document logging is emphasized. The court states that the in camera review of disputed privileged documents can be submitted to a referee under CPLR 3104. It approves the use of clawback and quick peek agreements.

Under CPLR 3126, if a party refuses a court order to disclose ESI the following sanctions may be ordered:

1. issues to which the information pertains are resolved in favor of the party getting the order for the ESI.

2. a preclusion of evidence order.

3. striking out parts of pleadings or issuing a default judgment.

The Bench Book notes that spoliation sanctions aren't limited to instances in which the offending party takes willful action, but may include circumstances where it was merely negligent.

The section on social media notes that courts prohibit fishing expeditions into accounts on sites like Facebook and Twitter and requests for data require a 'factual predicate'. Courts are not bound by the privacy settings of a user of such social media sites.

An appendix to the Bench Book provides summaries of key rulings in New York State on ESI issues.

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