New York Assemblyman Mark Weprin has sponsored Assembly Bill A-06000, to implement e-discovery rules in Article 31 of the Civil Practice Laws and Rules that will apply in all civil cases. He predicts that, as was the situation when similar obligations were incorporated into the Federal Rules of Civil Procedure just a few years ago, there will be a sea-change as to the manner in which civil cases are litigated in the New York Courts.

Based on our consulting experience with general counsel and outside counsel concerning the risks and obligations regarding retention and production of electronically stored information (ESI) and in litigating spoliation motions, Mr. Weprin’s prediction is on point and the following three defenses will no longer suffice:

We Have Produced What We Could Find”

The defense to a motion to compel that the party has produced what it could find will not suffice in many instances. The question that will invariably follow is whether reasonable steps were taken to preserve the information.  As litigators, we know that whenever a rule turns on the meaning of the term reasonable, a fight will ensue.

“The Evidence Was Not Lost on Purpose”

If the Federal approach in New York is any predictor, it will not be a valid defense to a sanctions motion that the litigant lost the evidence through carelessness as opposed to having done so intentionally to try to get an advantage in the case.  The Second Circuit Court of Appeals has held that the degree of fault necessary to impose the full range of sanctions in a Federal civil case is only that of negligence or carelessness.

“The Lost Evidence Was Not That Important”

Courts ordinarily decide cases on the merits based upon its assessment of the importance of conflicting evidence.  When evidence cannot be produced, the Court’s inability to assess the significance of the evidence-whether a “smoking gun” or merely a collateral point-works to the detriment of the party who failed to preserve it.  Such an approach promises a sea-change because in all other contexts the significance of the evidence to the outcome depends on the Court’s assessment of the evidence.  Here, the Court is empowered to presume that the lost evidence was very significant.

If you have any thoughts, comments or questions about this article, please contact Jonathan Scott at (214) 999-0080.