The Shifting Tide of ESI Discovery Cost Allocation
Securities Arbitration, 1899 PLI/Corp 405 (2011)
61 Pages Posted: 28 May 2011 Last revised: 11 Apr 2012
Date Written: May 25, 2011
Regardless of the means by which data travels, or the media on which it is stored, it is now, without question, “black letter law that computerized data is discoverable if relevant.” New York law, however, is anything but well settled with regard to ESI discovery cost allocation. Neither the New York Court of Appeals, nor the state’s Civil Practice Law and Rules (CPLR), have yet to address the issue of ESI discovery costs, while a fissure between the approaches employed by judges in the New York state court system continues to grow. Federal district courts routinely resolve ESI discovery cost allocation issues equitably, and while minor differences exist in a handful of judicial districts, the Federal Rules of Civil Procedure were amended in 2006 to adopt the essence of the analytical framework established by somewhat celebrated Southern District of New York jurists.
The recent trend in New York state courts reveals a decisive move away from the supposed “general rule,” conjured mainly from one deeply flawed trial court decision, toward harmonization with the vastly more elegant federal jurisprudence of permissive cost-shifting for inaccessible ESI. This trend has been ratified locally by amended rules within the Supreme Court Commercial Division, and by a comprehensive manual prepared and proposed by the New York City Bar Association. On a national level, there has been a wave of amendments, including key changes in 2006 to the Federal Rules of Civil Procedure; proposals offered by the Federal Judicial Center, a consortium of state court Chief Justices, and the American Bar Association. In addition, there has been development recently of uniform ESI discovery rules by the same organization that created the Uniform Commercial Code; as well as principles and best practices advanced by the Sedona Conference.
Recent guidance by the Financial Industry Regulatory Authority (FINRA) has also embraced the ESI discovery logic utilized in this federal judicial district, recognizing the leading case in this line of jurisprudence as “a standard of necessary steps that must be taken to preserve and produce electronic data.” While some states continue to employ the antiquated and inequitable “requester pays” approach, there can be little debate that the increasingly rapid pace of technological advancement demands regular refinement of e-discovery law. Permissive case-by-case cost-shifting of inaccessible ESI, through a multi-factor analysis, is the appropriate standard for resolving discovery production cost disputes. This is especially true in securities arbitration, where economic and informational disparities between disputants are often substantial, sometimes to the point of debilitating a genuine search for the truth, and at times, a disputant’s life savings may hang in the balance. As Judge Scheindlin rightly recognized in Zubulake I, “discovery that would be too expensive for one [party] to bear would be a drop in the bucket for another.”
Keywords: Discovery, e-Discovery, Electronically Stored Information, ESI, Zubulake, Scheindlin, Rowe, FINRA, Securities Arbitration, SEC, NASD, Records Retention, Broker-Dealer, Lipco, Requester Pays, MBIA v. Countrywide, Bransten
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