New York State Court Rules on Third Party ESI Request

In August 2014, the Chief Administrative Judge of the New York State implemented Rule 11-c for the Uniform Rules for the Supreme and County Courts of the State of New York which requires parties to adhere to guidelines for ESI discovery from nonparties stated in an appendix to the rule.

The guidelines specify the following:

1. The requesting party and the nonparty are encouraged to discuss ESI discovery issues as early as possible.

2. Nonparties from which ESI is sought should be contacted to discuss the implementation of a litigation hold.

3. ESI discovery requests from a nonparty must be proportional taking into account:

a. the importance of the issues at stake.

b. the amount in controversy.

c. the importance of the ESI.

d. availability from other sources.

e. the accessibility of the ESI.

f. the burden and cost.

4. Discovery motions are discouraged. The party must meet and confer with the nonparty, and can conduct a conference with the law clerk, a special referee or a mediator.

5. The requesting party must pay the costs of the nonparty's counsel; e-discovery consultations; electronic discovery itself (identification, preservation, collection, processing, relevancy review, and production are specifically mentioned); and privilege logs.

6. The requesting party may also have to pay for quantifiable costs from disruptions to business operations.