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Technology-Assisted Review By the Rules

The New York State Commercial Division Adds New Rule Endorsing Technology-Assisted Review in Discovery

Effective October 1, 2018, a new rule encourages litigants in the New York Supreme Court, Commercial Division, to use Technology-Assisted Review (TAR) as a means of reviewing documents, including electronically stored information (ESI), to comply with discovery obligations under the CPLR.

New Rule 11-e(f) of the Rules of the Commercial Division (22 NYCRR 202.70[g]) provides:

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.[1]

The Commercial Division Advisory Council subcommittee, charged with promulgating rules to promote efficient case resolution, has recommended that the Commercial Division encourage parties to consider the use of TAR where appropriate to increase the speed of discovery and reduce the associated costs.[2] “Sophisticated litigants know that the use of [TAR] –of which there are many types, ranging from widely used software tools like keyword searching to more sophisticated algorithmic technologies such as predictive coding –can yield substantial cost savings, as well as streamline and accelerate document review and production…” the subcommittee noted.[3]

The subcommittee also observed that neither the CPLR nor the Federal Rules of Civil Procedure address whether and under what circumstances the use of TAR is appropriate in discovery.[4]  Although courts have encouraged the use of TAR to make the discovery process more cost-effective while remaining legally defensible[5], court rules in New York have not explicitly adopted TAR as a permissible or even encouraged method for reviewing potentially responsive documents.[6] The new rule, then, will fill the gap and “confirm that [TAR] is a legitimate disclosure tool that parties may make use of in appropriate cases.”

The parties’ discovery obligations under the CPLR have not changed under the new rule and the rule in no way limits the role of the New York Supreme Court Justice presiding over discovery in a case.[7]  Further, the parties continue to be subject to the requirement that discovery requests seek documents.

Given the Commercial Division’s explicit endorsement of the use of TAR in litigation, Strategic Legal Solutions more than ever encourages corporations and law firms who are conducting document reviews or engaged in eDiscovery to work with an e-discovery and document review provider who are experience with and capable offering state-of-the-art technology and review solutions. Strategic Legal Solutions is a leader in providing end-to-end e-discovery and managed review solutions to Am Law 100 firms and Fortune 500 corporations. For more information send us a note or call  us at 212.944.9112.

 


 

[1] See, http://www.nycourts.gov/RULES/comments/PDF/received/PubComment-TechnologyAssistedReview.pdf (the “OCA Memorandum”); for the Commercial Division Rules, see, https://www.nycourts.gov/RULES/trialcourts/202.shtml#70.
[2] Id.
[3] See Id., Exh. A., p. 1.
[4] Id. at p. 2.
[5] See, e.g., Moore v. Publicis Group, 287 F.R.D. 182, 193 (S.D.N.Y. 2012) (“computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases.”); EORHB, Inc., et al. v. HOA Holdings, LLC, et al., No. 7409, 2012 WL 4896670 (Del. Ch. Ct. Oct. 15, 2012) (requiring the parties to use predictive coding).
[6] OCA Memorandum, Exh. A, p. 2.
[7] Id.

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