Should New York Courts Consider Evolving Standards on ESI Sanctions?

Publication Source: New York Commercial Litigation Insider

New York commercial litigators are witnessing the formative development of state law relating to the remedies for failing to preserve and produce electronically stored information (“ESI”). The New York courts, particularly the New York County Commercial Division and Appellate Division, First Department, are finally catching up to their federal judicial counterparts in developing important standards and guidelines governing the preservation and production of ESI and sanctions for failing to do so.

In large measure, the New York courts addressing these issues are adopting the standards as pronounced by the federal courts in the U.S. Court of Appeals for the Second Circuit. However, just when the New York courts are, at last, getting an opportunity to refine these issues, there is a national movement to eradicate the precise standards set by Second Circuit caselaw. In all likelihood, the Federal Rules of Civil Procedure (FRCP) will be amended to implement a new rule concerning sanctions for ESI discovery failures that will explicitly reject and supersede the Second Circuit standard that is now serving as the foundation for the evolving New York jurisprudence.

New York courts, and specifically its Commercial Division, may very well be advised to consider the national movement that is underway to recast the entire manner in which ESI-related discovery is addressed.

The Proposed Federal Rules Changes

The governing bodies of the federal court system are in the process of considering and proposing the most comprehensive changes to the FRCP in many years. Among these changes is a proposed new rule that will specifically address ESI discovery sanctions. After many public comments (a total of 2,345!), the Advisory Committee revamped its initial proposal and recommended the following amendment to FRCP 37(e):

Read the full article in the attached PDF.

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Kevin Schlosser is a Shareholder at Meyer, Suozzi, English & Klein, P.C., where he is Chair of the Litigation and Alternative Dispute Resolution Department which has a full roster of available private judges from virtually all disciplines of law. Mr. Schlosser also authors the popular blog, “New York Fraud Claims,” which analyzes the latest developments concerning civil fraud claims under New York law.