Opportunity to Comment on Proposed Changes to Commercial Division Rules

The Office of Court Administration is seeking public comment on a proposal to amend Commercial Division Rules 11-c, 8, 1(b), 9(d), 11-e(f), 11-g, and Appendices A, B, E, and F to provide additional guidelines related to the discovery of electronically stored information.

OCA’s summary of the proposal is:

The newly revised Rule 11-c refers practitioners to a revised Appendix A – Proposed E I Guidelines. The goal of the revisions is to address e-discovery in a more consolidated way, modify the rules for clarity and consistency, expand the rules to address important ESI topics consistent with the CPLR and caselaw, and to provide further detail in Appendix A – Proposed ESI Guidelines than is practical in the Commercial Division Rules. The 11-c Rule revision draws from other Commercial Division Rules as well as the Commercial Division Nassau County ESI Guidelines. Exhibit 1 of CDAC’s memo has an annotated version of proposed Rule 11-c, which denotes the source for each provision in the rule.

The revisions to Rule 11-c also specifically direct the parties to confer regarding e-discovery prior to the preliminary conference. Parties requesting ESI may specify the format in which ESI shall be produced. The amended rule also states that ESI discovery shall not be disproportionate to its benefits. Expenses associated with non-party ESI productions shall be defrayed by the requesting party. The amended rule also states parties should use efficient means to identify ESI for production, inadvertent production of privileged ESI is not deemed a waiver of privilege, and parties should take reasonable steps to preserve relevant.

E-mail your comments to [email protected] no later than November 8, 2021.

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