On Dec. 1, 2006, the Federal Rules of Civil Procedure were extensively amended to address the discovery of “electronically stored information.” (ESI). The package of amendments included substantial revisions and additions to Rules 16 (Pretrial Conferences), 26 (Duty to Disclose; General Provisions), 33 (Interrogatories), 34 (Producing Documents and Things, etc.), 37 (Failure to Make Disclosure; Sanctions), and 45 (Subpoenas). While federal court practitioners recently celebrated the fifth anniversary of these monumental rule changes, New York State has not yet been invited to the party. CPLR Article 31, New York’s disclosure article, has not been amended to specifically grapple with the disclosure of information stored in electronic format.
The lack of any substantial legislation in this area does not appear to be the result of careful deliberation by our representatives in Albany. Rather, it is most probably due to the fact that proposed changes to our state’s procedural rules, even those that can be strongly supported by the bench and bar, are not high on the Legislature’s to-do list. For better or worse, there are many other issues that dominate the legislative agenda, often to the exclusion of sound procedural reform in our court system.
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