New York Court Says
Attorneys Must Understand eDiscovery
Is the jig up for resisting attorneys? By Matt Knouff, Esq.
T
he Uniform Rules for the New York State of Trial Courts Rules §202.10(b) and §202.70(g) (Rules of Practice for the Commer- cial Division), were recently amended and published on Aug. 18 2010 and attorneys must take immediate steps to address the new
requirements.
The amendment to §202.12(b) deals with the appearance by counsel at a preliminary conference, namely, where eDiscovery is going to be involved in the matter. The amendment states:
Where a case is reasonably likely to include electronic discovery, counsel for all parties who appear at the preliminary conference must be suffi- ciently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery; counsel may bring a client representative or outside expert to assist in such e-discovery discussions.
Similarly the amendment to §202.70(g) of the Uniform Rules (Commercial Division) states:
(b) Consistent with the requirements of Rule 8(b), counsel for all parties who appear at the preliminary conference shall be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery. Counsel may bring a client representative or outside expert to assist in such discussions.
Attorneys taking on cases without adequate knowledge of eDiscovery issues has been a sore spot for the bench for quite some time. Judges have learned that eDiscovery ignorance is an enormous strain on FRCP; and one need only say Qualcomm or Morgan Stanley to send shivers down the spine of even the most sea- soned practitioner. However, despite massive sanctions, libraries of CLEs and best-practices webinars, the bar has been progressing at a snail’s pace when it comes to educating themselves about handling electroni- cally stored information in litigation.
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