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Eric Friedman
(212) 382-6754
Sara Shannon
(212) 382-6656



Issues Manual to Address E-Discovery Cost-Allocation

New York, September 16, 2009 – To address the uncertainty regarding the application of New York discovery rules to electronically-stored information (ESI), the New York City Bar Association has issued a report recommending amendments to the Civil Practice Law and Rules (CPLR), and has publish a manual for trial courts regarding cost-allocation in electronic discovery.

While there has been an explosion in the use of email and other electronic information, New York’s discovery rules were written for document discovery. The resulting uncertainty and patchwork of court decisions has created unnecessary costs and anxiety for parties to litigation. The Federal Rules of Civil Procedure were amended in 2006 to address e-discovery, but no such change has occurred in New York.

The Association’s report, prepared by a Joint Committee on Electronic Discovery that represented several Association committees, proposes that specific amendments be enacted to address the following issues (these amendments would apply to electronic discovery only, unless otherwise noted):

  • To address the scope of the duty to preserve documents, how much must parties preserve, under what circumstances and for how long, the report proposes a new CPLR 3119, which would apply to both ESI and document discovery.
  • To address the scope of production of documents, the report recommends additions to CPLR 3122(a) to deal with concerns about accessibility, duplicability, and proportionality.
  • To emphasize the need for weighing costs against benefits in discovery, recognizing the potentially astronomical costs of e-discovery, the report proposes adding a new subsection (j) to CPLR 3101 to incorporate well-established New York cases on proportionality.
  • To address the issue of the form in which ESI is produced, the report recommends the following amendments: (i) to CPLR 3120(a) stating that requests may specify the form in which ESI is produced; (ii) to CPLR 3122(a) stating that a producing party has a duty to object to the form set forth by the requesting party; (iii) to CPLR 3122(c) stating that (a) the producing party has a duty to state the form it intends to use in producing the ESI; (b) the producing party has the duty to produce the ESI in the forms in which they are ordinarily maintained or a form which is reasonably usable; and (c) a party need not produce the same ESI in more than one form.
  • To address inadvertent disclosure, the report proposes adding: (i) a “clawback” provision as a new CPLR 3122(e) which would allow the producing party to seek return of erroneously produced material within 15 days of becoming aware of the erroneous production; and (ii) a waiver provision as a new CPLR 3122(f). The new CPLR 3122(e) would apply to both ESI and document discovery.

The report can be found at

The Joint Committee also considered the issue of cost-shifting and determined that New York law mandates that the requesting party pay the cost of discovery unless a motion is made for a protective order shifting the cost. The Joint Committee concluded that this historical presumption was unlikely to change for ESI. However, there is extensive confusion about the presumption. The Joint Committee determined it would be most helpful to issue a Manual to assist New York courts in managing cost disputes that are unique to electronic document discovery. That manual can be found at

About the Association
The New York City Bar Association ( was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.


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