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.

Chief Justice Roberts commented that the newly amended Federal Rule of Civil Procedure, Rule 26 “crystalizes the concept of reasonable limits in discovery through increased reliance on the common-sense concept of proportionality.”  This common sense approach was recently embraced by a Special Master, and then approved by the District Court Judge, in the products liability case In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016).

In that case, the defendants proposed to withhold or redact non-relevant information from their production of documents.  The proposal included redacting non-relevant parent emails from responsive families (i.e., if the email was not relevant but it’s attachments were, defendants proposed to redact the email, but produce the entirety of attachments).  Specifically, defendants proposed to redact information pertaining to seven discrete categories of information in an effort to balance their desire to protect highly confidential trade secrets while complying with their discovery obligations.

The District Court concluded the defendants’ proposal was appropriate and, quoting Chief Justice Robert’s comments about the then proposed amendments, highlighted that “a party is not entitled to receive every piece of relevant information,” and therefore “it is only logical” that “a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”  This “common Sense” approach is a fair and balanced way to proceed with discovery, especially when responsive information is mixed with non-responsive information.

While not discussed in the In re Takata case, query whether a redaction log – comparable to a privilege log — is advisable when applying responsiveness redactions to one’s production.  Such a log may prevent against gamesmanship and over-designations.  I, myself, have had occasion to apply responsiveness redactions to productions and have made it my practice to create a redaction log, which articulates – in a summary fashion – the reason for the redaction (i.e., redaction of information relevant to a contract other than the one at issue in this litigation).