Check the Rules Part IX: More Procedural Particularities of Practicing in the Commercial Division
December 13, 2018
As readers of this blog have come to appreciate, we here at New York Commercial Division Practice tend to report on — among other things Commercial Division — the procedural particularities of litigating commercial matters before the various judges that have been assigned to the Commercial Division over the years. Such particularities may arise from, say, a new or amended Commercial Division Rule, or from a new or amended Individual Practice or Part Rule.
For example, we repeatedly have reported on the particularities of the individual-practice rules of Manhattan Commercial Division Justice Eileen Bransten, who, along with her colleague Justice Charles E. Ramos (also no stranger to this blog), will be retiring this month and will be succeeded next year by incoming Justices Joel M. Cohen and Andrew S. Borrok. In case you missed it, the New York Law Journal announced the appointments of Justices Cohen and Borrok to the Commercial Division just before Thanksgiving.
Speaking of procedural particularities and new Commercial Division judges, perhaps most particular of all are the Practices for Part 54 overseen by New York County’s most recent addition to the Commercial Division, Justice Jennifer G. Schecter, who was appointed in April 2018 and took over the docket of recently-retired Manhattan Commercial Division Justice Shirley Werner Kornreich.
Justice Schecter’s Part Rules are numerous and specific — 58 if you’re counting (not including subparts) — and cover everything from file to trial. Her rules seemingly anticipate anything that can arise during the course of a complex commercial litigation in a way that only someone who spent more than a decade as Principal Law Secretary to former Chief Judge Judith Kaye of the New York Court of Appeals and the aforementioned Justice Bransten can appreciate.
To be sure, there is much to consider in Justice Schecter’s rules, but here are 10 or so important reminders for practitioners litigating in her Part:
Rule 21 — Don’t ask your assistant or paralegal to call the court to confirm scheduling, etc. “The court will only take calls from the parties’ attorneys of record.”
Rule 27 — Don’t dump documents on your adversary after hours. “[W]hen a discovery deadline is set forth in a court order, that deadline is 5:00 pm, New York time.”
Rule 31 — Don’t withhold documents on the basis of privilege without serving a privilege log along with your production. “Failure to serve a privilege log with the party’s production will, absent good cause, be deemed a waiver of the party’s objection on the ground of privilege.”
Rule 33 — Don’t send a colleague to a status conference without full knowledge of the case. “Attorneys appearing for conferences must be fully familiar with the case [and] should be prepared to discuss the merits of their case at all conferences.”
Rule 34 — Bring everything with you to compliance conferences if you want the court to rule on a discovery dispute. “Any party that wants to resolve a dispute about the sufficiency of a discovery response during a conference shall bring whatever will be needed to obtain a ruling, including copies of the disputed demands and responses.”
Rule 39 — Adhere to new Commercial Division Rule 17 concerning word limits and swear to it. “Every brief, memorandum, affirmation, and affidavit shall include . . . a certification by the counsel who has filed the document describing the number of words in the document.”
Rules 40-41 — Don’t file an attorney “brief-irmation” or a party “brief-adavit” in support of a motion. “Argument must be confined to the brief,” which “must accompany every motion.”
Rules 45 and 52 — Include complete copies of all contracts filed as exhibits to your motion papers. “Excerpts of contracts may not be filed.”
Rule 54 — Agree with your adversary on a joint Rule 19-a statement of material facts or don’t bother. “If the parties cannot agree on a joint statement, a Rule 19-a statement of facts is not permitted.”
Rule 55 — Obtain and file your oral-argument transcripts if you want a decision on your motion. “Motions will not be marked fully submitted and the court will not issue a decision until the transcript is e-filed and the Part Clerk receives a hard copy of the transcript with the e-filing confirmation receipt.”
Be sure to check in early next year for future posts on the individual practices of incoming Manhattan Commercial Division Justices Cohen and Borrok. In the meantime, a happy holiday season to all our readers!
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