Commercial Division Rules May Be Coming to a Non-Commercial Court Near You
November 05, 2018
For those civil practitioners who don’t regularly practice in the Commercial Division – beware. The Unified Court System’s Advisory Committee on Civil Practice (the “Committee”) has proposed that nine (9) Commercial Division Rules be broadly adopted by other, non-commercial civil courts. These nine rules all have one common goal: to promote efficiency in New York courts.
Earlier this year, the Committee conducted a detailed evaluation of the Commercial Division Rules (22 NYCRR 202.70[g]) to determine which of those rules, if any, should be broadly adopted by non-commercial courts. In a July 2018 report (the “Report”), the Committee recommended broader application of the following Commercial Division Rules:
Rule 3(a) – Appointment of a court-annexed mediator (as amended)
- Rule 3(a) provides that a judge may direct, or counsel may seek, the appointment of an uncompensated mediator. This rule also allows counsel for all parties to stipulate having the case determined by a summary jury trial. The Committee recommended statewide adoption of this rule, with a minor amendment stating that the court may advise (rather than direct) the appointment of a court-annexed mediator. This rule will promote judicial efficiency and potentially result in the earlier resolution of cases through ADR.
Rule 3(b) – Settlement conference before a judge not assigned to the case
- In addition to Rule 3(a), the Committee recommended adoption of paragraph (b), which provides that counsel can request a settlement conference before another judge who is not the judge assigned to the case. The Committee noted, however, that it may be difficult to implement Rule 3(b) in some downstate counties where judicial resources may not be as readily available.
Rule 11-a – Limitations on interrogatories
- The Committee also recommended statewide adoption of Rule 11-a, which, among other things, sets certain limitations on the use of interrogatories (i.e., interrogatories cannot exceed more than 25 in number, including subparts, and are limited to succinct categories). In the Committee’s view, this proposed amendment “would result in increased efficiency and streamlined litigation” and “serve as a useful guideline for limiting unnecessary, burdensome or abusive discovery practices.”
Rule 11-b – Privilege Logs (in part)
- To reduce the time and costs associated with preparing document-by-document privilege logs, the Committee recommended the partial adoption of Rule 11-b, which permits the use of categorical privilege logs. According to the Committee, the categorical approach “is more efficient and cost-effective for the parties, helps streamline litigation and facilitates expeditious court review.” However, the Committee is not in favor of Rule 11-b’s provision regarding cost allocation, which permits a party required to produce a document-by-document privilege log to apply to the court for costs associated with that log. Rather, the Committee recommends that, in cases where the parties disagree about which approach to follow, the court should determine whether the categorical approach or the document-by-document approach will be used.
Rule 11-d – Limitations on depositions
- Similar to the statewide adoption of Rule 11-a (limitations on interrogatories), the Committee recommends that Rule 11-d’s limitations on depositions be broadly adopted. Under this rule, the number of depositions is presumptively limited to ten (10) per party, and each deposition will be limited to seven (7) hours per deponent. These limits can be changed by stipulation or by court order upon a showing of good cause.
Rule 11-e – Responses and objections to document requests (as amended)
- It is no mystery that boilerplate objections have become widely disfavored among judges, and are even sanctionable in some courts. Thus, the Committee proposed the broad adoption of Rule 11-e, which requires parties responding to discovery requests to either state that the production will be made as requested, or state with reasonable particularity the grounds for any objection. The proposed rule will also require a responding party to state, at the time if disclosure, whether the production of documents is complete, that there are no responsive, non-privileged documents in its possession, or explain why the production is not complete.
Rule 19-a – Statement of material facts for summary judgment motions
- The Committee recommended statewide adoption of Rule 19-a, “as it is likely to greatly assist in narrowing and clearly setting forth the material issues.” The Committee further recommended that a statement of material facts be required in all cases involving summary judgment, and not just in cases “where the court directs.”
Rule 20 – Temporary restraining orders
- This Commercial Division Rule requires notice to an adverse party of any application for a temporary restraining order, unless the moving party can demonstrate that “significant prejudice” would result from such notice. The Committee recommended statewide adoption of this rule because it “advances a just result by giving all parties notice of the issues and an opportunity to comment.”
Rule 34 – Staggered court appearances
- Most judges generally have specific motion and conference days and, most parties are directed to appear at a specific time on such day (for example, Tuesdays at 9:30 a.m.). The result is often a courtroom packed with attorneys waiting to be heard, sometimes for hours. Rule 34, however, is intended to encourage “court staggered appearances” by providing litigants specific time slots to appear, depending on the nature of the appearance. The goal of this proposed rule is obvious: to reduce congestion in the courtrooms and eliminate the inordinate amount of time attorneys spend waiting to be heard, thus reducing client costs and increasing courtroom efficiency.
The Committee is now seeking public comment on the recommendations set forth above. However, the Committee determined that wholesale adoption of the Commercial Division Rules statewide is not warranted. Indeed, many of the commercial division rules already exist in one form or another (i.e., Rule 1 [appearance by counsel with knowledge and authority, which is already incorporated into most conference orders; Rule 11-f [deposition of entities, which is already adequately addressed in CPLR Articles 23 and 31, respectively]) and, some of the specific rules may actually add to the costs of litigation or place additional burdens on litigants (i.e., Rule 21 [providing courtesy copies in e-filed cases, which, according to the Committee, is “contrary to the goals of paperless electronic litigation”]).
So what does this mean for civil practitioners? Whether you practice mainly in the Commercial Division or in other civil courts, the Office of Court Administration is seeking to streamline litigation in non-commercial cases and make civil practice in all courts more efficient and practical. If these rules are ultimately adopted statewide, ADR will become more commonplace, abusive discovery practices, such as boilerplate objections and excessive interrogatories, will not be tolerated, discovery will become more streamlined and efficient, and hopefully, litigants won’t be waiting in court for hours until their case is finally called.
The Administrative Board is now seeking public comment on the recommendations set forth in the Advisory Committee’s Report. Those wishing to comment on the Report should e-mail their submissions to email@example.com or write to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, New York 10004. Comments must be received no later than January 15, 2019.
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