Disclosure of Electronically Stored Information from a Non-Party
Patrick M. Connors
Albany Law School
February 7, 2012
New York Law Journal, Vol. 247, No. 14, p. 3, January 23, 2012
Albany Law School Research Paper No. 43 of 2011-2012
While federal court practitioners recently celebrated the fifth anniversary of the monumental rule changes to address “electronically stored information” (ESI), New York State has not followed suit. CPLR Article 31, New York's disclosure article, has not been amended to specifically grapple with the disclosure of information stored in electronic format. New York State judges have been forced to resolve these issues on a case-by-case basis. However, in the hands of a thoughtful judge, the CPLR has proved to be a remarkably adaptable tool to resolve disclosure issues in the electronic age.
Some early decisions in this century made clear that, upon demand, a party is required to produce any relevant information that exists in electronic form. The courts have interpreted the language in CPLR 3120, requiring the production of "any designated documents or any things," to include any relevant electronically stored information.
Recently, in Tener v. Cremer, 89 A.D.3d 75 (1st Dept. 2011), the First Department ventured into this important realm and addressed the obligation of a nonparty to produce ESI that had actually been deleted through normal business operations.
This article is an analysis of the Tener v. Cremer case which is a landmark decision in the infancy of New York’s development of a body of common law interpreting the CPLR to resolve issues arising in electronic disclosure. If New York stays the course and does not opt to substantially amend the CPLR to address the disclosure of ESI, we may actually arrive at a better place. The courts will be more adept to address constant changes in technology and can better exercise the necessary discretion that will help to fairly resolve these issues.
Date posted: February 7, 2012