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New York Court Rules Mandate E-Discovery Competency

Part 202 of the Uniform Civil Rules for the Supreme Court and the County Court of the State of New York addresses preliminary conferences in section 202.12. This section mandates that attorneys be competent in electronic discovery.

Counsel for parties are required to confer with each other about any anticipated electronic discovery issues prior to the conference. The rules state that, ". . . counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery." Attorneys are allowed to bring an employee of their client, or an electronic discovery specialist to the conference in order to assist with this discussion.

The rules recommend that attorneys consider whether or not the cost of preserving and producing relevant ESI is proportional to the amount in controversy.

A court can determine the 'method and scope' of electronic discovery. It can specify the following:

1. Categories of relevant ESI.

2. A date range for relevant ESI.

3. Disclosure of how ESI is stored.

4. Disclosure of the accessibility of ESI.

5. ESI custodians.

6. Form of production.

7. Bates labeling, redaction, and privilege logging for ESI.

8. Clawback provisions.

9. Search and review methods.

10. Allocation of the cost of electronic discovery.

Section 202.70 lists the Rules of the Commercial Division of the Supreme Court. Rule 1(b) addresses the "Appearance by Counsel with Knowledge and Authority", and restates the e-discovery competency requirement discussed in the section on the preliminary conference.

In accelerated actions in New York the parties waive certain discovery rights. Rule 9(d) specifies that in such actions electronic discovery meet the following requirements:

1. Electronic documents be produced in format that the opposing party can search.

2. ESI be collected from only from custodians reasonably anticipated to have material evidence.

3. "where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the court will either deny such 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."

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