On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect. 

Rule 11-e governs Responses and Objections to Document Requests.  The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process. 

The new subdivision (f) states:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases…

In addition to implicitly recognizing the cost attendant to e-discovery, the rule promotes cooperation by encouraging parties in commercial cases “to confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.”  And so, the new Commercial Division Rule appears to bring New York State Commercial Division expectations closer in line with those set forth in the Federal Rules, specifically Rule 26(f), which encourages litigants (with an eye toward proportionality) to discuss preservation and production of ESI.

Questions about technology assisted review?  Please contact kcole@farrellfritz.com.

In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern District of Wisconsin granted IDC’s motion to compel the production of more than 600 documents that had previously been produced by Bonddesk with extensive non-responsive redactions applied.

Bonddesk argued that the applied redactions were necessary to protect confidential business information that had no relevance to the underlying dispute.  In making this argument, Bonddesk relied on In re Takata Airbag Prods. Liab. Litig., 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016). In the Takata case, the district court in the Southern District of Florida permitted the redactions based upon “non-responsiveness,” because of the “concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.”

In the present case, however, the Court looked to the Federal Rules for guidance. Specifically, the Court observed that redactions based upon relevance are not explicitly supported by the Federal Rules, and seemingly contrary to the Rules’ allowance for broad discovery. The Court also reasoned redactions based upon relevance (or a lack thereof), have the potential for abuse. For example, should non-responsive redactions be deemed per se proper, parties may be incentivized to “hide as much as they dare” (internal citations omitted).   Moreover, the Court reasoned that Bonddesk failed to provide an otherwise “compelling reason” for its “extensive” redactions and failed to explain why the protective order in place did not provide adequate protection.

Therefore, based upon the Court’s fear of party abuse, Bonddesk’s failure to articulate a compelling reason for the redactions, and Bonddesk’s failure to articulate why the protective order was insufficient, the Court granted IDC’s motion to compel. The Court concluded it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds.”

This decision does not conclude relevance redactions are per se impermissible, but it reminds us, as practitioners, that engaging our adversary in a meaningful discussion about inter alia redactions, is good practice. Recall, the theme of late from the federal courts is “cooperation”. Here, there was a protective order in place and no compelling reason to apply the redactions at issue. Query whether had the lawyers spoken, the cost of motion practice and a subsequent (un-redacted) production could have been avoided. It seems lately that a collaborative approach is preferred by the Bench.  However, if such a meet and confer/discussion is not practical or possible, at least be prepared to provide compelling reasons why a robust “So Ordered” confidentiality agreement is not sufficient to protect the content of your client’s documents before unilaterally applying redactions.