Crafting A Strong E-Discovery Proposed Order

In an earlier article on January 5, 2012, we discussed how 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. At that time, the New York State Bar Association had just released a report titled, “Best Practices in E-Discovery in New York State and Federal Courts,” which contains practical “hands on” advice concerning the preservation, collection and production of ESI.

But what does a joint proposed joint e-discovery submission and proposed order look like and what topics should it cover and in what level of detail?  An excellent example of what a joint e-discovery judicial submission might look like may be found in the class action litigation styled United States of America v. Apple, Inc., (In Re Electronic Books Antitrust Litigation) which submission was filed in the SDNY on July 6, 2012. Although some initial Rule 26 disclosures may contain more or less information, I believe that the information provided here represents a good faith effort to comply with the rule and to address potentially thorny issues from the outset. By reaching consensus early on concerning the scope of e-discovery to be conducted, the parties spare themselves and their clients a great deal of expense and potential heartache down the road.

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.