New E-Discovery ‘Best Practices’

New York practitioners should stay abreast of important new rules and proposed rules governing E-discovery in both the state and federal courts in New York.  As reported by Mark A. Berman in an article in the New York Law Journal on January 3, 2012, NYSBA’s influential E-Discovery Committee has released a report entitled,"Best Practices in E-Discovery in New York State and Federal Courts", which contains practical "hands-on" advice concerning what Mr. Berman describes as  the challenging electronic discovery landscape relating to the preservation, collection and production of ESI. Until now, state court  practitioners perhaps have not felt the same pressure in a state court setting as in federal court  to "get it right" when it came to ESI.  This may begin to change. The working group of the NYS Unified Court System is expected to shortly release a bench book on ESI, which will be provided to state judges.  In Manhattan, Commercial Division Justice Jeffrey K. Oing, is utilizing a model electronic e-discovery order, which may soon become the norm in commercial litigation throughout the State.  Even more than previously, e-discovery concerns need to be raised with both the client and the adversary at the earliest possible stage of a claim.  The Berman article provides a good overview of the key guidelines in the report.