Parties and their attorneys should be aware of the unique and often conflicting set of rules developing in New York state courts regarding electronic discovery generally, and associated cost allocation specifically, which can differ markedly from these rules and presumptions in federal courts.1 Among other things, while far from settled, many state courts are directing requesting parties to pay for responding parties’ discovery costs as a purported statutory right or presumption.
With a lack of guidance from New York’s Civil Practice Law and Rules (CPLR) on this issue, a patchwork of bar-bench proposals, judicial administrative initiatives, and case law have developed that exacerbates the confusion and risks to parties.
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