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.