The Changing Landscape of E-Discovery

Over the past ten years, discovery has increasingly shifted focus from the traditional hardcopy documents to electronically stored information (“ESI”). While the shift toward ESI discovery certainly began before 2020, the abrupt pivot to an increased remote workforce due to the COVID-19 Pandemic catapulted ESI discovery to the forefront. In this new world where a vast majority of business is conducted remotely or via email, the traditional days of paper documents might be largely behind us. Real estate closings can now occur remotely rather than the conference room, contracts are negotiated and executed via email, even notes are now taken on a tablet rather than a yellow pad. Commercial litigators and transactional lawyers alike must pay attention to how these changes affect the legal profession and adjust their practices accordingly.

The Commercial Division took notice of the rapidly evolving landscape and, in 2022, amended Commercial Division Rules 1, 8, 9, 11-c, 11-e and 11-g to address the standards and procedures applicable to ESI discovery. The majority of the changes are embodied in Rule 11-c and Appendix A which now apply to party discovery in addition to third-party discovery.

Appendix A to the Commercial Division Rules, titled “Guidelines for Discovery of Electronically Stored Information” (“Guidelines”), is a great resource for commercial litigators. Although the Guidelines remain “advisory,” all commercial litigators should familiarize themselves with the Guidelines as they contain a wealth of information to assist in navigating ESI discovery. The Guidelines advise on everything from the conduct of the e-discovery process to the preservation and collection of ESI, as well as the form of ESI production.

The cost of ESI discovery can be extremely high—in many cases, the cost of ESI could start to approach, or even exceed, the amount sought in the litigation. Practitioners need to be aware of these costs to devise an appropriate litigation strategy. The amended Rule 11-c addresses the costs and efficiency of ESI discovery similar to the Federal Rules of Civil Procedure. The Guidelines encourage parties to tailor ESI demands to what is reasonable and proportionate to the litigation, “considering the burdens of the requested discovery, the nature of the dispute, the amount in controversy, and the importance of the materials requested to resolving those issues” [see Guidelines I(B)] and allows the court to weigh the costs and burden of ESI discovery against the benefit to the litigants to modify or deny requests.

One important, but potentially overlooked, section of the Guidelines discusses sources of discoverable ESI. Just some examples included in the Guidelines are “workstations, email systems, instant messaging systems, document management systems (e.g., Google Drive, Sharepoint, Confluence), collaboration tools (e.g., Microsoft Teams, Slack), social media, mobile devices and apps, cloud-based storage, back-up systems, and structured databases[.]” See Guidelines III(B). Attorneys need to be knowledgeable about the various sources of potentially discoverable information to best advise their clients on the preservation and retrieval portion of the discovery process and to ensure that all relevant information is captured and produced pursuant to the New York Rules of Professional Conduct. See N.Y Rules of Prof. Conduct, Rule 3.4(a)(1) (“A lawyer shall not: (a)(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce”).

Further, it is not uncommon for ESI document productions to consist of hundreds of thousands of pages of documents. With this increased volume, comes an increased risk for an inadvertent production of a privileged document. Rule 11-c(g) now contains an automatic clawback provision, which provides that the inadvertent production of privileged materials does not constitute a waiver of the privilege and requires that the privileged documents be destroyed or returned, unless the claim is challenged.

In summary, the landscape of discovery in civil litigation continues on its trajectory towards complete ESI, rather than traditional hardcopy documents. All practitioners, even those who do not practice in the Commercial Division, should familiarize themselves with the Guidelines and the potential issues that arise with ESI discovery to ensure their practice of law evolves contemporaneously with the legal landscape.

This article was originally published in Nassau Lawyer.