Proposed guidelines for nonparty e-discovery in New York’s Commercial Division

The guidelines are not intended to modify governing case law or replace any related rules

New York is known as the financial capital of the world, and as such its state and federal courts host more than their fair share of complex commercial litigation. Among the New York courts, the New York State Supreme Court’s Commercial Division is particularly busy with high-stakes litigation involving sophisticated businesses, and its opinions are watched by serious litigators everywhere. Nonparties are routinely drawn into this fray by subpoenas, a burden that is exacerbated by e-discovery.

Against this backdrop, a proposed new rule containing certain guidelines for e-discovery from nonparties in the Commercial Division (the Guidelines) has been published for public comment. If adopted, the nonparty e-discovery guidelines would take their place in a crowded field of e-discovery “guidelines” of all shapes and sizes, promulgated by official, unofficial and quasi-official bodies. Practitioners have the unenviable task, in navigating the right e-discovery course, of trying to harmonize or distinguish all of these guidelines with applicable case law and other rules and regulations in any particular venue. That being said, given the general paucity of law on e-discovery directed at nonparties, useful guidance would be welcome.

The fourth Guideline provides that when a nonparty objects to discovery because the ESI is “not reasonably accessible” (note the difference between this phrase and “relative accessibility” used in the previous Guideline) due to undue burden or cost, the objection “shall” be stated with “reasonable particularity.” Commentators may question whether this accessibility standard is actually intended to differ from either the previous Guideline’s accessibility standard or from the identical “not reasonably accessible” formulation in Federal Rules of Civil Procedure Rule 26(b)(2)(B). Moreover, it is unclear why a special Guideline is necessary with regards to objecting with reasonable particularity in the specific situation postulated by the Guideline, as such particularity is typically required in stating all objections.

In Guideline V, the elements of a meet and confer between a party and nonparty are identified. These include the scope of discovery, the timing and form of production, and the use of “informal” ways to resolve disputes that do not involve motion practice. Commentators may have their own suggestions for other e-discovery topics appropriate for discussion at these conferences. For example, additional topics might include ways to handle inadvertent production of privileged ESI.

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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