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Bisceglie on Electronic Discovery, Evidence and Claims in New York

In his Emerging Issue Commentary, Attorney Kyle C. Bisceglie, Partner at Olshan Grundman Frome Rosenzweig & Wolosky LLP in New York City, summarizes the legal developments in New York related to electronically stored information (“ESI”) or “electronic discovery”, as it is called in New York state courts. This analysis emphasizes New York state law in this emerging area, referencing federal precedent only as necessary to guide state practice, and treats ESI evidentiary issues and new substantive claims that merit the practitioner’s attention. The author writes: 
New York generally has been a forward-looking jurisdiction in dealing with electronic discovery. New York courts held ESI discoverable as early as 1979. See Ball v. State, 101 Misc. 2d 554, 421 N.Y.S.2d 328 (Ct. Cl. 1979) (finding that computer information, including printouts and tapes containing raw data, is discoverable). New Yorks early adoption of a meet and confer requirement for electronic evidence in its Commercial Division rules, development of evidentiary standards for authentication, and amendment to the CPLR to preserve privileged communications over email provide additional evidence that electronic discovery has been part of practice in New York since long before the December 2006 amendments to the Federal Rules of Civil Procedure governing discoverability of ESI. See 2006 Amendments and Advisory Committee Notes to Fed. R. Civ. P. 16(b), 26(a)(b) and (f), 33(d), 34(a), 37(e) and 45(a)(b)(d) and (e).
However, like most states, New Yorks rules of civil procedure do not expressly address electronic discovery: the CPLR contains no specific provisions governing the discovery of electronic documents. Lipco Elec. Corp. v ASG Consulting Corp., 4 Misc. 3d 1019A (N.Y. Supr. Ct. 2004). Instead, courts and practitioners rely on the general pre-trial disclosure provisions of Article 31 of the CPLR, specifically CPLR 3120, for disclosure of electronic records, and often look to the Federal Rules of Civil Procedure and federal case law for guidance. Delta Financial Corp. v. Morrison, 13 Misc.3d 604, 819 N.Y.S.2d 908, 911 (N.Y. Supr. Ct. 2006).
This commentary addresses the following areas that are important for the New York practitioner to evaluate when considering electronic discovery: (I) preservation and litigation holds; (II) court ordered preservation; (III) the meet and confer; (IV) the allocation of costs between the parties and cost shifting; (V) spoliation of electronic discovery; (VI) use of E.S.I. as evidence; (VII) the impact of electronic data on substantive claims available under New York law; (VIII) preservation of the attorney-client privilege; and (IX) third party discovery. The meet and confer requirement has been addressed briefly, and this commentary does not address at length technical issues of ESI including format of exchanges (e.g., TIFF, PDF, native, PST, etc.), document management systems (Concordance, Summation, Ringtail, etc.) and presentation of evidence at trial.
I. Preservation
New York state courts impose a duty on the part of the party in possession and control of evidence to see that it is preserved. Amaris v. Sharp Electronics Corp., 304 A.D.2d 457, 758 N.Y.S.2d 637 (1st Dept. 2003). The obligation to preserve evidence arises only when a party should have known that the evidence may be relevant in future litigation. Kroniscvh v. United States, 150 F.3d 112, 126 (2d Cir. 1998). This duty often predates the filing of the suit. In Zubulake IV, the court found the duty arose before any written complaint was made because the evidence indicated that the employees of defendant who worked with the plaintiff recognized the possibility she might sue. Zubulake v. UBS Warburg et al., 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (Zubulake IV).
VI. Use of ESI as Evidence

Litigators have and, apparently, will continue to expend a tremendous amount of time, effort and clients money in obtaining ESI through discovery. Likewise, jurists, commentators and third-party legal support service providers have written extensively on electronic discovery. There is limited guidance on how to use ESI as evidence in motion practice or at trial once it has been obtained.

The evidentiary issues presented by ESI are essentially the same evidentiary issues presented by traditional documentary evidence. With respect to ESI, trial lawyers most commonly encounter four evidentiary hurdles: (1) is the ESI relevant; (2) is it authentic; (3) if the ESI is offered for the truth of the matter asserted, is it hearsay, and if so, is it covered by an applicable exception; and (4) is the form of the ESI that is being offered as evidence an original or a duplicate of the original writing?

New York does not have written evidence rules but depends on a hodgepodge of court rules, CPLR, statutes and case law. This has significant implications for the practitioner including greater importance of case law interpretation, less uniformity and substantially more trial court discretion. In federal court, the jury determines questions of relevance and authentication under Fed. R. Evid. 104(b), and the court determines questions of hearsay under Fed. R. Evid. 104(a). In New York state courts, the court determines relevance, authentication, hearsay and best evidence.

While many New York federal and state cases address discoverability of ESI, only a handful of cases involve ESI evidence….. 
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