United States: Keeping Up With The Commercial Division(s)

Last Updated: March 2 2015

Article by Robert Friedman and Bradley Rank

The past year has been a busy time for anyone keeping up with the Rules for the Commercial Division of the New York State Court System.  The Commercial Division Advisory Council, led by Justice Eileen Bransten, has been pushing through various reformative measures, most of which were first recommended in the June 2012 Report and Recommendations to the Chief Judge of the State of New York of the Chief Judge's Task Force on Commercial Litigation in the 21st Century.  Below is a brief summary of the new rules, which are already in effect or take effect on April 1, 2015.

Responses to Document Demands

Starting April 1, 2015, Rule 11-e will require parties to provide additional details regarding each objection to a particular document demand and the party's production of documents in accordance with the objections.  Each party will be required to state in its document response whether the production will be made as requested or, if not, state with reasonable particularity the grounds for any objection, including:  (i) whether the objection pertains to all or part of the demand; (ii) whether any documents or categories of documents are being withheld and which objections pertain to which documents or categories of documents; and (iii) the manner in which the scope of the production will be limited.  The new rule also requires the parties to set a date for completion of the production of responsive documents, which is to be no later than the start of depositions.  Finally, no later than one month prior to the close of discovery, each party must state whether their production is complete as to each particular request or that there are no documents in the party's possession, custody or control that are responsive to the request.

Model Compliance Conference Order

The Commercial Division recently adopted a model compliance conference order that, beginning April 1, 2015, will require substantially more detail concerning the status of the case.  That model compliance conference order is available here.  In particular, the new model compliance conference order requires parties to state in detail any changes to the theory of the case or calculation of damages, advise as to the status of various discovery topics including electronic discovery and expert discovery, and update the court as to the parties' positions on alternative dispute resolution and settlement.

Letter Briefing of Discovery Disputes

Rule 14 of the Commercial Division Rules was recently amended to allow parties to brief discovery disputes by letter rather than by motion.  After each side submits a letter of no more than three single-spaced pages, the court will schedule a telephone or in-person conference.  Failure to brief the issue by letter before making a formal motion may result in the motion being held in abeyance.  The new rule will not preclude the parties from making formal motions in order to preserve the record on appeal.  This new amendment takes effect as of April 1, 2015.

Rules of Practice re: Dilatory Tactics 

The Preamble of the Commercial Division Rules was recently amended, effective as of April 1, 2015, to state that Commercial Division will not tolerate "adversaries who engage in dilatory tactics, fail to appear for hearings or depositions, unduly delay in producing relevant documents, or otherwise cause the other parties in a case to incur unnecessary costs."  The preamble then reminds counsel of existing rules regarding sanctions.

Limitation on Number of Depositions 

Beginning April 1, 2015, Commercial Division Rules 8-b and 11-c will limit parties to 10 depositions each and no more than 7 hours per deponent.

Privilege Logs

As of September 2, 2014, Commercial Division Rule 11-b allows parties to produce "categorical" privilege logs designating privileged documents by category, rather than in an item-by-item list.  Our blog post discussing this rule change shortly after it went into effect can be found here.

Requests for Assignment to the Commercial Division

Effective September 2, 2014, parties must now request assignment to the Commercial Division within 90 days after service of the complaint by filing a Request for Judicial Intervention with a Commercial Division RJI Addendum.

Rules Regarding Discovery of Electronically Stored Information ("ESI") 

Since September 2, 2014, Commercial Division Rule 11-c requires parties to adhere to Guidelines for discovery of ESI from non-parties, which inter alia requires the requesting party to defray reasonable costs of producing ESI.

Consultation Prior to Preliminary Conference 

Effective September 2, 2014, Commercial Division Rule 8 was amended to require counsel to discuss, prior to the preliminary conference, any voluntary or informal exchange of information that the parties agree would aid early settlement of the case.

Special Masters Pilot Program in New York County

On August 4, 2014, a pilot program was established in the New York County Commercial Division in which the Court may elect to refer complex discovery issues to Special Masters, who are "seasoned practitioners," and serve pro bono.  Referral requires the parties' consent, and while assignment is random, parties can request re-assignment to a different Special Master.

Mandatory Mediation 

As of July 28, 2014, every fifth Commercial Division case in New York County in which a Request for Judicial Intervention has been filed and an assignment to a Division Justice has been made is being sent to mandatory mediation.

Limitation on Number of Interrogatories 

Effective June 2, 2014, Commercial Division Rule 11-a limits the number of interrogatories, including subparts, that each party may serve during discovery to 25 in number, and to the following topics:  names of witnesses, computation of damages, and details concerning the location and custody of documents.  The parties may, however, consent to serve interrogatories beyond the scope of these limitations, or seek the Court's permission to do so if the other party does not consent.  At the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, the parties may serve interrogatories seeking the claims and contentions of the opposing party.

Optional Rocket Docket 

Since June 2, 2014, Commercial Division Rule 9 provides parties the option to agree to accelerated adjudication procedures which provide for, inter alia:  (i) completion of discovery within nine months; (ii) waiver of trial by jury, objections as to personal jurisdiction or forum and punitive or exemplary damages; (iii) limited discovery (7 depositions of no more than 7 hours per deponent, 7 interrogatories, and 5 requests to admit per side); and (iv) the waiver of any right to any interlocutory appeal.

Increased Monetary Thresholds

As of February 17, 2014, the monetary threshold for assignment to the Commercial Division was increased from $150,000 to $500,000 in New York County, and as of September 2, 2014, the threshold was increased to $200,000 in Nassau County, to $150,000 in Kings County, to $100,000 in Suffolk and Queens Counties and the Eighth Judicial District, and to $50,000 in Onondaga and Albany Counties.

Staggered Court Appearances 

Commercial Division Rule 34 now allows the court to schedule staggered time slots for oral arguments.  It further requires counsel to notify adversaries of appearance and requires 48 hours advance, written notice to reschedule any court appearance.

* * *

While attorneys and their clients will undoubtedly find some of these rule changes more beneficial than others, these changes to the Commercial Division Rules should have the desired effect of reducing delay and unnecessary costs. They also bring practice in the Commercial Division of the State of New York more in line with practice in most Federal Courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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