Assembly Bill A10152

2009-2010 Legislative Session

Relates to making changes to include the disclosure of electronically stored information in civil cases

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Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 08, 2010	referred to codes

2009-A10152 (ACTIVE) - Details

Current Committee:: Assembly Codes
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd R3120 & R3122, §§3126 & 3131, CPLR

2009-A10152 (ACTIVE) - Summary

Relates to making changes to include the disclosure of electronically stored information in civil cases.

2009-A10152 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A10152

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to electronic discovery

PURPOSE OF BILL:  The proposed amendments are intended primarily to
clarify the treatment of electronically stored information in civil
disclosure proceedings conducted prior to the filing of a note of
issue. These amendments are not intended to expand or restrict the
scope of information that might otherwise be accessible in other
contexts, such as by issuance of a trial subpoena pursuant to Article
23 or through subpoenas in aid of enforcement issued pursuant to CPLR
5223 or 5224.

SUMMARY OF PROVISIONS OF BILL:  The proposed amendments would modify
Article 31 as follows:

* CPLR 3120(1)(i) would be modified to explicitly recognize
"electronically stored information" as a category of potentially
discoverable information, along with "documents" or "things";

* CPLR 3120(2) would be modified to permit a party seeking discovery
of electronically stored information to request production of such
information in one or more specifically designated forms;

* CPLR 3122(a) would be modified (i) to permit a party, when objecting

to a request for electronically stored information, to include any
specific objection the party has to a requested form of production;
(ii) to require the objecting/responding party to designate the form
or forms in which the party proposes to produce electronically stored
information, in cases where such party has objected to the requested
form or forms-of production, or where no particular forms of
production were specified in the request; and (iii) to clarify that,
absent a court order, a party need not provide disclosure of
electronically stored information that is not reasonably accessible
due to undue burden or cost, and to provide a balanced procedure for
handling disputes as to whether.such information is reasonably
accessible;

* CPLR 3122 would be further amended to add a new CPLR 3122(e)
specifying that, as a general practice, (i) production of
electronically stored information shall be made either in the form in
which such information is ordinarily maintained, or in a form that is
reasonably useable by the party requesting such discovery, and (ii) a
party need not produce electronically stored information in more than
one form;

* CPLR 3122(b) would be amended to extend its provisions for
identification of withheld materials to the production of
electronically stored information;

* CPLR 3126 would be amended to include a limitation on sanctions in
cases where information is lost through the routine, good-faith
operation of an electronic information system; and


* CPLR 3131 would be amended to include electronically stored
information among the types of materials that a party may request as a
supplement to interrogatories.

JUSTIFICATION:  Courts and commentators have repeatedly noted the sea
change in litigation practice brought about as a result of electronic
discovery. The proliferation of email and other kinds of
electronically stored information in business and personal affairs,
coupled with ever-increasing ease of dissemination and retention of
such information, has vastly multiplied the volume of electronic
material that can potentially meet the threshold requirements for
discoverability in cases of even modest complexity. In some instances,
the time and attention that is required to identify, preserve,
collect, analyze, and produce electronic information is staggering;
yet, in many such cases, the most relevant information can only be
found through e-discovery.

The reaction to electronic discovery in the Federal courts has been
sweeping and profound. The Federal courts have recognized that
relevant, non-privileged electronic information is presumptively
discoverable so long as it is reasonably accessible. Based on this
principle, the Federal courts have adopted procedural rules to ensure
that e-discovery issues are addressed at the outset by attorneys, the
parties they represent, and the courts. Under federal practice,
failure to comply with e-discovery obligations has at times led to
significant sanctions, both for clients and for the firms who
represent them. And attorneys have been confronted with a new kind of
responsibility - the obligation to police the client's compliance with
e-discovery obligations - that combines legal, ethical, and technical
issues in new and challenging ways.

Thus far, these changes in federal practice and procedure have not
been matched by any corresponding amendments to the CPLR. Some New
York state courts have tried to provide guidance on the procedures for
and permissible scope of e-discovery through individual decisions.
See, e.g. Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908, 2006 N.Y.
Misc. LEXIS 2232 (Sup. Ct. Nassau Co. 2006) (Warshawsky, J.); Weiller
v. N.Y. Life Ins, Co., 800 N.Y.S.2d 359, 2005 N.Y. Misc.  LEXIS 473,
(Sup. Ct. N.Y. Co. 2005) (Cahn, J.); Lipco Electrical Corp. v. ASG
Consulting Corp. 798 N.Y.S.2d 345, 2004 N.Y. Misc. LEXIS 1337 (Sup.
Ct. Nassau Co. 2004) (Austin, ); Etzion v. Etzion, 796 N.Y.S.2d 844,
2005 N.Y. Misc. LEXIS 519 (Sup. Ct. Nassau Co. 2005) (Stack,).

In addition, the Commercial Division of the New York State Supreme
Court has promulgated rules providing for the management of electronic
discovery through early conferencing and inclusion of e-discovery
issues in case management orders. See Rule 8(b) of the Rules of the
Commercial Division of the Supreme Court, NYCRR 202.70. By their
nature, these efforts could not (and did not) attempt to establish a
comprehensive or uniform statewide practice for managing and
conducting e-discovery; and while models for state-level rules of
electronic discovery have been developed, see, e.g., Nat'l Conference
of Commissions on Uniform State Laws, Uniform Rules Relating to the
Discovery of Electronically Stored Information (2007), proposals
either to adopt these Uniform Rules in New York or to incorporate any
of their provisions into the CPLR are in early stages of development.


LEGISLATIVE HISTORY:  2009 (Weprin); A.6000: A. Codes

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE:  This act shall take effect on the thirtieth day after
it shall have become law.

2009-A10152 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  10152

                          I N  A S S E M B L Y

                              March 8, 2010
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred to the
  Committee on Codes

AN ACT to amend the civil practice law and rules, in relation  to  elec-
  tronic discovery

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Rule 3120 of the civil practice law and rules,  as  amended
by chapter 575 of the laws of 2002, is amended to read as follows:
  Rule  3120.  Discovery  and  production  of  documents  and things for
inspection, testing, copying or photographing.
  1. After commencement of an action, any party may serve on  any  other
party a notice or on any other person a subpoena duces tecum:
  (i)  to  produce  and  permit  the party seeking discovery, or someone
acting on his or her behalf, to inspect, copy, test  or  photograph  any
designated  documents,  ELECTRONICALLY  STORED INFORMATION or any things
which are in the possession, custody or control of the party  or  person
served; or
  (ii)  to  permit  entry  upon designated land or other property in the
possession, custody or control of the party or  person  served  for  the
purpose  of  inspecting, measuring, surveying, sampling, testing, photo-
graphing or recording by motion pictures or otherwise  the  property  or
any specifically designated object or operation thereon.
  2.  The  notice  or subpoena duces tecum shall specify the time, which
shall be not less than twenty  days  after  service  of  the  notice  or
subpoena,  and the place and manner of making the inspection, copy, test
or photograph, or of the entry upon the land or other property  and,  in
the  case of an inspection, copying, testing or photographing, shall set
forth the items to be inspected, copied, tested or photographed by indi-
vidual item or by category, and shall describe each  item  and  category
with  reasonable  particularity.  THE NOTICE OR SUBPOENA MAY SPECIFY THE
FORM OR FORMS IN  WHICH  ELECTRONICALLY  STORED  INFORMATION  IS  TO  BE
PRODUCED.
  3.  The  party  issuing a subpoena duces tecum as provided hereinabove
shall at the same time serve a copy  of  the  subpoena  upon  all  other

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD09140-01-9

A. 10152                            2

parties  and,  within  five days of compliance therewith, in whole or in
part, give to each party notice that  the  items  produced  in  response
thereto  are  available  for inspection and copying, specifying the time
and place thereof.
  4.  Nothing contained in this section shall be construed to change the
requirement of section 2307 that a subpoena duces  tecum  to  be  served
upon  a library or a department or bureau of a municipal corporation, or
of the state, or an officer thereof, requires a motion made on notice to
the library, department, bureau or officer, and the adverse party, to  a
justice of the supreme court or a judge of the court in which the action
is triable.
  S  2.  Rule  3122  of  the civil practice law and rules, as amended by
chapter 575 of the laws of 2002, is amended to read as follows:
  Rule 3122. Objection to disclosure, inspection or examination; compli-
ance. (a) Within twenty days of service of a notice  or  subpoena  duces
tecum  under  rule 3120 or section 3121, the party or person to whom the
notice or subpoena duces tecum is directed,  if  that  party  or  person
objects  to  the  disclosure,  inspection  or examination, shall serve a
response which shall state with reasonable particularity the reasons for
each objection, INCLUDING AN OBJECTION TO THE REQUESTED  FORM  OR  FORMS
FOR  PRODUCING  ELECTRONICALLY STORED INFORMATION.  If objection is made
to part of an  item  or  category,  the  part  shall  be  specified.  IF
OBJECTION IS MADE TO THE REQUESTED FORM OR FORMS FOR PRODUCING ELECTRON-
ICALLY  STORED  INFORMATION, OR IF NO FORM WAS SPECIFIED IN THE REQUEST,
THE RESPONDING PARTY MUST STATE THE FORM OR FORMS IT INTENDS TO  USE.  A
medical  provider  served  with  a  subpoena  duces tecum requesting the
production of a patient's medical records pursuant to this rule need not
respond or object to the subpoena if the subpoena is not accompanied  by
a  written  authorization  by  the  patient.  Any subpoena served upon a
medical provider requesting the medical records of a patient shall state
in conspicuous bold-faced type that the records shall  not  be  provided
unless  the  subpoena  is  accompanied by a written authorization by the
patient. [The] A PARTY OR PERSON NEED NOT PROVIDE DISCOVERY OF ELECTRON-
ICALLY STORED INFORMATION FROM SOURCES THAT THE PARTY IDENTIFIES AS  NOT
REASONABLY  ACCESSIBLE  BECAUSE OF UNDUE BURDEN OR COST. A party seeking
disclosure under rule 3120 or section 3121 may move for an  order  under
rule  3124  or  section  2308 with respect to any objection to, or other
failure to respond to or permit inspection as requested by,  the  notice
or  subpoena duces tecum, respectively, or any part thereof. ON A MOTION
TO COMPEL DISCLOSURE UNDER RULE 3124 OR SECTION 2308 OR FOR A PROTECTIVE
ORDER UNDER SECTION 3103 OR SECTION 2304 INVOLVING ELECTRONICALLY STORED
INFORMATION IDENTIFIED AS NOT REASONABLY ACCESSIBLE, THE PARTY OR PERSON
FROM WHOM DISCOVERY IS SOUGHT MUST SHOW  THAT  THE  INFORMATION  IS  NOT
REASONABLY  ACCESSIBLE  BECAUSE OF UNDUE BURDEN OR COST. IF THAT SHOWING
IS MADE, THE COURT MAY NONETHELESS ORDER DISCLOSURE FROM SUCH SOURCES IF
THE REQUESTING PARTY SHOWS GOOD CAUSE THEREFOR. IN ORDERING SUCH DISCLO-
SURE THE COURT MAY MAKE ANY ORDER PERMITTED UNDER SECTION 3103,  INCLUD-
ING AN ORDER SPECIFYING CONDITIONS FOR THE DISCLOSURE.
  (b)  Whenever a person is required pursuant to such a notice, subpoena
duces tecum or order  to  produce  documents  OR  ELECTRONICALLY  STORED
INFORMATION  for inspection, and where such person withholds one or more
[documents] ITEMS that appear to be within the category  of  the  [docu-
ments]  MATERIALS  required by the notice, subpoena duces tecum or order
to be produced, such person shall give notice to the party  seeking  the
production and inspection [of the documents] that one or more such docu-
ments  OR  ELECTRONICALLY  STORED  INFORMATION  are being withheld. This

A. 10152                            3

notice shall indicate the legal ground for withholding each such  [docu-
ment]  ITEM, and shall provide the following information as to each such
[document] ITEM, unless the party withholding the [document] ITEM states
that  divulgence  of  such  information  would  cause  disclosure of the
allegedly privileged information: (1) the type of document OR  ELECTRON-
ICALLY  STORED INFORMATION; (2) the general subject matter of the [docu-
ment] ITEM; (3) the date of the [document]  ITEM;  and  (4)  such  other
information  as  is  sufficient  to  identify  the [document] ITEM for a
subpoena duces tecum.
  (c) Whenever a person is required pursuant to such notice or order  to
produce documents for inspection, that person shall produce them as they
are  kept  in the regular course of business or shall organize and label
them to correspond to the categories in the request.
  (d) Unless the subpoena duces tecum directs the production of original
documents for inspection and copying at the place where such  items  are
usually  maintained,  it  shall be sufficient for the custodian or other
qualified person to deliver complete and accurate copies of the items to
be produced. The reasonable production expenses of a  non-party  witness
shall be defrayed by the party seeking discovery.
  (E) UNLESS THE PARTIES OTHERWISE AGREE OR THE COURT ORDERS OTHERWISE:
  (I)  WHENEVER  A  PERSON IS REQUIRED PURSUANT TO SUCH NOTICE, SUBPOENA
DUCES TECUM, OR ORDER TO PRODUCE ELECTRONICALLY STORED  INFORMATION  FOR
INSPECTION AND COPYING, IF SUCH NOTICE, SUBPOENA OR ORDER DOES NOT SPEC-
IFY  THE  FORM OR FORMS FOR PRODUCING ELECTRONICALLY STORED INFORMATION,
THE PERSON SHALL PRODUCE THE INFORMATION IN A FORM OR FORMS IN WHICH  IT
IS  ORDINARILY  MAINTAINED  OR  IN  A  FORM OR FORMS THAT ARE REASONABLY
USEABLE; AND
  (II) A PERSON NEED NOT PRODUCE THE SAME ELECTRONICALLY STORED INFORMA-
TION IN MORE THAN ONE FORM.
  S 3. Section 3126 of the civil practice law and rules, as  amended  by
chapter 98 of the laws of 1993, is amended to read as follows:
  S  3126. Penalties for refusal to comply with order or to disclose. If
any party, or a person who at the time a deposition is taken or an exam-
ination or inspection is made is an officer, director, member,  employee
or  agent  of  a  party or otherwise under a party's control, refuses to
obey an order for disclosure or wilfully fails to  disclose  information
which  the  court  finds  ought  to have been disclosed pursuant to this
article, the court may make such orders with regard to  the  failure  or
refusal as are just, among them:
  1. an order that the issues to which the information is relevant shall
be  deemed  resolved  for  purposes of the action in accordance with the
claims of the party obtaining the order; or
  2. an order prohibiting  the  disobedient  party  from  supporting  or
opposing  designated  claims  or  defenses,  from  producing in evidence
designated things  or  items  of  testimony,  or  from  introducing  any
evidence  of the physical, mental or blood condition sought to be deter-
mined, or from using certain witnesses; or
  3. an order striking  out  pleadings  or  parts  thereof,  or  staying
further  proceedings until the order is obeyed, or dismissing the action
or any part thereof, or rendering a  judgment  by  default  against  the
disobedient party.
  ABSENT  EXCEPTIONAL CIRCUMSTANCES, A COURT MAY NOT IMPOSE SANCTIONS ON
A PERSON FOR FAILING TO PROVIDE ELECTRONICALLY STORED  INFORMATION  LOST
AS A RESULT OF THE ROUTINE, GOOD-FAITH OPERATION OF AN ELECTRONIC INFOR-
MATION SYSTEM.

A. 10152                            4

  S  4.  Section 3131 of the civil practice law and rules, as amended by
chapter 859 of the laws of 1975, is amended to read as follows:
  S  3131.  Scope  of interrogatories. Interrogatories may relate to any
matters embraced in the disclosure requirement of section 3101  and  the
answers  may  be  used to the same extent as the depositions of a party.
Interrogatories may require  copies  of  such  papers,  documents  [or],
photographs   OR  ELECTRONICALLY  STORED  INFORMATION,  SUBJECT  TO  THE
PROVISIONS OF RULE 3122 OF THIS ARTICLE, as are relevant to the  answers
required,  unless  opportunity  for  this  examination  and  copying  be
afforded.
  S 5.  This act shall take effect on the thirtieth day after  it  shall
have become a law.

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Assembly Bill A10152

Sponsored By

Archive: Last Bill Status - In Assembly Committee

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2009-A10152 (ACTIVE) - Details

2009-A10152 (ACTIVE) - Summary

2009-A10152 (ACTIVE) - Sponsor Memo

2009-A10152 (ACTIVE) - Bill Text download pdf

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Sponsored By

WEINSTEIN

Archive: Last Bill Status - In Assembly Committee

Actions

2009-A10152 (ACTIVE) - Details

2009-A10152 (ACTIVE) - Summary

2009-A10152 (ACTIVE) - Sponsor Memo

2009-A10152 (ACTIVE) - Bill Text download pdf

Comments