Check the Rules Part IV
December 21, 2017
In one of our very first posts on this blog – entitled “First Things First: Check the Rules!” – we reported on some updates in March of this year to Manhattan Commercial Division Justice Eileen Bransten’s individual practice rules. We took the opportunity then to remind Commercial Division practitioners, in light of the frequency with which Commercial Division judges update their individual rules, to make a point of regularly checking the rules of those judges to whom their cases have been assigned.
Case in point: Justice Bransten recently updated her practice rules for the second time this year.
Subscribers to CourtAlert, a New York case-tracking service, may recall receiving an email alert in early November, notifying practitioners that Justice Bransten had updated her practice rules as of October 27, 2017, and recommending that practitioners working on cases assigned to Part 3 download her newly-updated rules and forward them on to all other attorneys working on such cases. A handy comparison with Justice Bransten’s prior rules highlights the following updates:
- Status Conference Order Form: In addition to providing Part 3 order forms for Preliminary and Compliance Conferences, Justice Bransten’s practice rules provide a New Model Status Conference Stipulation and Order form – which, as far as we can tell, is a first-of-its-kind in the Commercial Division. The stated purpose of the form is “to assess the progress the parties have made and to determine what items are outstanding and what needs to be done to ensure that discovery is completed and the Note of Issue is filed in a timely fashion.”
The 33-page, comprehensive order form covers the waterfront, including but not limited to prior conferences and appearances; an updated description of the surviving claims and amounts demanded; general progress reports on document discovery and depositions, including any proposed new dates for completion; specific reports on electronic discovery and privilege logs; anticipated expert discovery, if any; and a status report on any progress toward settlement, including through the use of ADR.
Apropos to a number of recent posts on this blog, Justice Bransten’s new Status Conference order form makes specific reference to, and offers detailed descriptions of, virtually all the newer Commercial Division Rules that have been rolled out in recent years.
- Discovery Dispute Procedure: In accordance with Commercial Division Rules 14 and 24, Justice Bransten prefers to resolve discovery disputes “through a court conference – not through motion practice.” Her updated rules now provide for a dispute-resolution process that, in addition to requiring the moving party to submit a pre-conference position letter, permits “[t]he non-moving party to submit a rebuttal letter no later than 3 business days after the moving letter is filed.” In addition to being e-filed on the NYSCEF system, all pre-conference letters must be submitted in hard copy before the Court will conduct the conference.
- Motion Exhibits: With respect to all motion submissions, Justice Bransten’s updated rules now specify that “Plaintiff shall use lettered exhibits [and] Defendant is to use numbered exhibits.”
- Pre-Trial Submissions: Finally, with respect to the parties’ pre-trial submissions, particularly the identification of witnesses, Justice Bransten’s updated rules make a point of clarifying that “[t]he Court need only be advised of witnesses each party will call as part of their case-in-chief [and] reserves the right to permit rebuttal witnesses upon application from the parties.”
**Nota Bene** – Once again, we would be remiss not to mention an upcoming Commercial Division-related event, particularly one concerning rule changes, sponsored by the Commercial & Federal Litigation Section of the New York State Bar Association. On Thursday, January 18, 2018, the NYSBA will be sponsoring a webcast CLE entitled “Amendments to the Commercial Division Rules 2018: A Renaissance in Commercial Litigation Practice.” The CLE will cover recent rule changes concerning, among other areas, expert disclosure, limitations on depositions, non-party electronic discovery, and privilege logs.