Following the lead of several federal courts, hyperlinks in legal briefs in the Commercial Division appear to be well on the way! The Commercial Division Advisory Council (“Advisory Council”) has announced a new proposal, which was put out for public comment, mandating hyperlinks. The proposed amendment to Rule 6 of the Commercial Division Rules would require legal memoranda to include hyperlinks [a feature in an electronic document that permits a reader to jump to another location or file with just one click] to other sources and would grant judges discretion in determining whether to require hyperlinking and to what extent the benefit of hyperlinking outweighs the burdens.
The proposed amendment to Rule 6 would include the following:
- “require hyperlinking to a cited docket entry already available on NYSCEF;
- give Justices discretion to require hyperlinking cited legal authorities to Lexis/Nexis or Westlaw, or a government website;
- encourage hyperlinking cited legal authorities even if not required; and
- permit exemptions from required hyperlinking for parties that certify an inability to comply with the requirement without undue burden.”
This amendment hopes to advance Chief Judge DiFiore’s Excellence Initiative, which seeks to “ensure the just and expeditious resolution of all matters.” This amendment would also be in theme with the Commercial Division’s latest efforts to implement technology in the courts for purposes of improving efficiency and productivity.
Hyperlinking to external sources cited in legal memoranda, similar to bookmarking – internal hyperlinks – will enable judges and their clerks to access cited materials more quickly and with greater ease. The Advisory Council states that hyperlinks are particularly helpful in complex cases i.e., like those within the jurisdiction of the Commercial Division.
The Advisory Council explains that other courts have encouraged and even required hyperlinking. For example, the Second Department now requires that briefs contain bookmarks or hyperlinks to legal authorities to permit the judges and their staff to access the referenced authorities more efficiently: “electronically-filed briefs should contain bookmarks or hyperlinks to the authorities cited in those briefs. If utilized bookmarks should take the reader to a copy of the cited authority, that is, the case, statute or rule, which will be part of the briefs submitted.”
In addition, certain Commercial Division Justices, including Justice Saliann Scarpulla already encourage the use of hyperlinks in electronically-submitted memoranda. Similarly, Justice Andrea Masley currently requires hyperlinks to actual NYSCEF documents. Interestingly, the Second, Third, and Fourth Circuit’s local rules, to name a few, permit the use of hyperlinks.
Notably, if a party certifies in good faith that it cannot include hyperlinks without undue burden as a result of “limitations in its office technology or other showing of good cause,” the court may excuse the party from compliance.
This is a long-awaited and welcome rule change. The Administrative Board of the Courts is now seeking public comment on the proposal set forth in the Advisory Council’s Memorandum. Those wishing to comment should e-mail their submissions to email@example.com or write to: Eileen D. Millet, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, New York 10004. The public comment period is open through February 24, 2020.