Sharper Briefs, Smarter Discovery: Two Proposed Commercial Division Rule Changes

The Commercial Division Advisory Council has released two proposed rule amendments for public comment — one requiring greater transparency in discovery cost-shifting requests, and another mandating pinpoint citations in Commercial Division filings.

Proposal No. 1: Transparency for Discovery Cost-Shifting Requests

The first proposal would add a new Commercial Division Rule 14-b addressing requests for cost shifting in discovery disputes. The proposed text provides:

Rule 14-b. Discovery Cost Shifting. If a party requests cost shifting in connection with a discovery dispute, the party’s motion or response should state the basis for the request and include a good-faith estimate of the amount of costs to be shifted, including an explanation of how that estimate was determined.

This proposal is particularly relevant in today’s complex commercial litigation, especially in cases involving significant electronically stored information (ESI). To illustrate the stakes, the Advisory Council cites Lawson v. Spirit Aerosystems, Inc., 2021 WL 4844058 (D. Kan. Oct. 18, 2021), where a court required the requesting party to pay over $1 million in discovery expenses.

This rule draws on the Texas Business Court, whose Local Rule 4(e) — effective March 1, 2025 — requires parties to state “the amount of costs that should be shifted, how that amount was determined, and the basis for the requested cost shifting”. The Advisory Council also examined the Georgia Business Court Rule 7-5(d) and the North Carolina Business Court Rule 10.9(d) as alternative models. Both require only an “estimate” of costs with a “reasoned factual basis,” and Georgia’s rule expressly cautions that “cost-shifting should not be a common practice,” reinforcing the default that the responding party ordinarily bears its own discovery costs.

Importantly, the Advisory Council clarifies that the good-faith estimate would not be binding on the requesting party. Because discovery costs often involve projections that are refined as collection and review proceeds, the rule requires only that the party provide its best estimate at the time of briefing, with the understanding that the total amount may change.

The Advisory Council frames this rule as advancing both transparency and efficiency. The proposed rule also signals the Commercial Division’s “strong commitment to cost-effectiveness,” positioning it as an efficient venue for resolving disputes involving significant volumes of discoverable material.

Proposal No. 2: Mandatory Pinpoint Citations

The second proposal would amend Commercial Division Rule 6 by adding a new subdivision requiring pinpoint citations. The proposed text states:

 (e) Citations. Provide pinpoint citations in legal memoranda, letter briefs, affidavits, affirmations, and exhibits. For legal authority cite the specific page; for depositions cite the page and line number; for affidavits or affirmations, cite the page number and paragraph number; and, for exhibits, provide equivalent specificity such as, for example, the page and section number for contracts and similar documents. To further aid the reader, when referring to legal memoranda, letter briefs, affidavits and exhibits filed on NYSCEF, cite the NYSCEF document number (e.g., NYSCEF Doc.30, Plaintiffs Memorandum of Law at p.4)

If this rule were adopted, practitioners would be required to direct the court to the exact page, paragraph, line number, or contractual provision supporting each factual or legal assertion. The proposal also encourages citations to the relevant NYSCEF document number so that chambers can quickly locate electronically filed materials.

The Advisory Council modeled this rule on a provision recently adopted by the Texas Business Court, which requires practitioners to “[p]rovide pinpoint citation to all legal authorities” and do “the same for evidence”. The Advisory Council explains that requiring pinpoint citations allows the court to verify factual assertions quickly and efficiently, noting that “[t]he reader should never be left guessing where the referenced authority resides”.

Notably, the Advisory Council’s memo includes a practical incentive: a filing party that cites NYSCEF document numbers would be entitled to exceed the applicable word count limit under Rule 17 by an additional 100 words. For practitioners already contending with tight page and word limits, this bonus may encourage early adoption even before the rule takes effect.

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