Recent Case Law Provides Guidance for ESI Production

http://ow.ly/7j5K0

An article by Mark Berman appearing on law.com on the LTN webpage.

This article discusses the case of Tener v. Cremer, --N.Y.S.--, 2011 WL 4389170 (1st Dept. Sept. 22, 2011) and provides information about a non-party's obligation to produce electronically stored information. The article provides a link to information about the case.  The article also touches on another case that discusses a party's obligation to produce ESI and an index, even where hard copies have already been produced.  Furthermore the article touches on obligations surrounding production of information from social media networks.

In discussing the Tener case the article states that the court held, "In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts, several courts, as well as bar associations, have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. Indeed, in 2006, the Conference of Chief Justices approved a report entitled "Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information." New York's Uniform Rules for the Trial Courts specifically contemplate discovery of ESI. Rule 202.12(c)(3) allows a court, where appropriate, to establish the method and scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] §202.12[c]"

The article further states, "The 1st Department noted that the Nassau Guidelines define ESI as "not to be deemed 'inaccessible' based solely on its source or type of storage media. Inaccessibility is based on the burden and expense of recovering and producing the ESI and the relative need for the data." The court, in addressing "inaccessibility," also relied on the Sedona Conference."  Footnotes providing additional reference materials about the courts holding are also provided in the article.

The article analyzes additional cases, and in discussing social media production under New York State law the article says, "...parties should be aware that their social media accounts are "in play" when litigating, and a court may require production of social media ESI, albeit after an in camera review, which review, under recent 1st Department precedent, will be circumscribed to only allow for the production of ESI truly relevant to the claim at issue."