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September 11, 2012

N.Y. E-Discovery Pilot Program Puts Order in the Court

800px-NYC_-_New_York_County_Supreme_CourthouseNew York state courts are following in the e-discovery footsteps of federal court pilot programs such as the state's Southern District, according to a post by Paul E. Asfendis on Gibbons E-Discovery Law Alert, putting state court litigators on notice in at least one courtroom.

Under the aegis of New York's Electronic Discovery Working Group, Justice Jeffrey J. Oing's Part 48 of the State Supreme Court's Commercial Division in New York County will pilot the use of a new electronic discovery order (EDO) form. Participation in the program and completion of the order is mandatory for all cases filed in Part 48 after June 15, 2011.

The form must be completed by the parties after they meet and confer and prior to a preliminary conference as stipulated by the Uniform Rules for New York State Trial Courts. By signing the order both parties certify they have participated in meet and confers and possess sufficient knowledge of their clients' technological systems to discuss their electronic discovery -- or have assigned an expert who can do so. The EDO covers such issues as preservation, the scope, extent, and form of production as well as its cost and allocation, identification of privileged documents, and inadvertent production and clawback agreements.

Whether use of the EDO will expand to other parts (or departments), as Asfendis comments, remains to be seen, but the order might afford litigators in the New York state court system an opportunity to consider and discuss their e-discovery duties early.

For links to Commercial Case Rules for Part 48, Model E-Discovery Order, and the pilot program memo, visit the court's web page.

Image by wallyg

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