ESI Problems Highlight Need To Amend CPLR

The recent case of Einstein v. 357 LLC[FOOTNOTE 1] discloses the need for the New York Legislature to amend Article 31 of the Civil Practice Law and Rules to relieve stress on the courts with respect to the discovery of electronically stored information. Judges are struggling to apply antiquated rules forged long ago in a document-only world to ESI-disclosure disputes that drafters of the CPLR never envisioned. Parties are bedeviled with escalating costs caused, at least in part, by the lack of clear rules. These stresses frustrate the dispute resolution process because they tend to tie up resources and delay justice.

ESI frustrations were recently on display in Einstein, where Justice Charles E. Ramos sanctioned a defendant for failing to adopt and enforce a "litigation hold" to prevent the ongoing destruction of e-mails requested by the plaintiffs. The court's opinion reveals that: (a) plaintiffs were frustrated by the need to bring several motions and hire an ESI vendor just to get access to a limited number of missing e-mails; (b) the court had to expend significant judicial resources to get to the bottom of the story of the missing e-mails; and (c) the defendant appeared to be confused as to the nature and extent of its discovery obligations as to ESI.

The Legislature can ameliorate the situation by enacting a few simple amendments to Article 31. A Joint Committee of the New York City Bar recently issued a report that suggests several such amendments.[FOOTNOTE 2]

THE DUTY TO PRESERVE

The first proposed amendment deals with a key question raised in Einstein: What is the attachment point of the duty to preserve and the scope of that duty once it does attach? The CPLR is silent on the obligation of parties and their counsel to effectuate a "litigation hold,"[FOOTNOTE 3] which is a term of art generally used to mean the suspension of any routine document "retention and destruction policy" and the implementation of additional steps to ensure the preservation of relevant documents and ESI.[FOOTNOTE 4]

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Source: law.com
By: Jeffrey Winn