N.Y. Comp. Codes R. & Regs. Tit. 22 r. 202.70.11-c - Discovery of Electronically Stored Information

(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.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 22 r. 202.70.11-c

Adopted, New York State Register September 3, 2014/Volume XXXVI, Issue 35, eff. 9/2/2014 Amended New York State Register April 13, 2022/Volume XLIV, Issue 15, eff. 4/11/2022