In our last “Check the Rules” post back in December, we noted the recent additions to the Manhattan Commercial Division bench, Justices Andrew Borrok and Joel M. Cohen, and promised to report back in early 2019 on any notable practice rules in their respective Parts.

My colleague Viktoriya Liberchuk’s perceptive post last week on the recent trend in the Commercial Division (and beyond) to formally encourage in-court “at bats” for young lawyers cited two specific rules from the newly-published “Practices and Procedures” for both Justice Borrok and Justice Cohen, both of whom encourage and even incentivize the “less senior attorney” or the “lawyer out of law school for five years or less” to argue motions before them.

In addition to advocating for the development of junior associates, Justice Borrok’s individual practice rules also suggest that he’s an advocate for the use of technology in the practice of law, or at least in his Part.  In his one and only published decision in 2019 thus far, Ostro v Ostro, Justice Borrok twice ordered the parties to comply with the court’s e-filing procedures, which is the subject of an entire section of his practice rules entitled “Electronic Filing.”

Justice Borrok has a handful of other techie practice rules worthy of note:

Be sure to “bookmark” your briefs and “hyperlink” your references to case law, etc.  Justice Borrok requires strict adherence to the requirement in Commercial Division Rule 6 that all briefs “shall include bookmarks providing a listing of the document’s contents and facilitating easy navigation by the reader within the document.”  He also “strongly encourages” the use of hyperlinks within documents submitted to the court.

Make sure you’re registered for “eTrack.”  As noted in Justice Borrok’s practice rules, as well as in the New York State Unified Court System’s description of the service, “eTrack is a case tracking service which enables you to track active Civil Supreme Court cases from all 62 counties of New York State.”  Justice Borrok requires that “parties and/or their counsel” litigating in his Part be registered for eTrack.

Check in at the “kiosk” outside the courtroom before appearing for a conference.  There’s a kiosk located near the courtroom entrance of Part 53.  Counsel are required to check in by entering the index number of their case, select and print the appropriate conference form(s), and fill them out before entering the courtroom.  By the way, be sure to set specific discovery dates in your proposed conference orders.  Open-ended “within 45 days”-type deadlines won’t cut it.

Submit your trial documents on a “flash drive.”  If you’re headed to trial before Justice Borrok, be sure to submit all your trial documents — including marked pleadings, prior decisions, notices to admit, deposition transcripts, and the like — “via flash drive prior to the hearings or start of trial.”

Be sure to check back with us in the coming months for notable decisions coming out of the newly-constituted Parts 3 and 53 in the Manhattan Commercial Division.

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Tired of printing hundreds of thousands of documents and carrying numerous boxes of documents to court? The New York Commercial Division has heard your cry.  The New York Law Journal  reported that the Commercial Division courts are committed to utilizing technology to help make litigation efficient and more user friendly. The Commercial Division hopes to utilize innovative and advanced technology to efficiently adjudicate, among others, complex commercial matters. The benefits are bountiful as they will be valuable to lawyers, judges, and jurors.

In October, innovative technology made its debut in Justice Saliann Scarpulla’s courtroom in the New York County Commercial Division. In addition to Justice Scarpulla’s Part Rules, which require all cases be electronically filed and all documents text-searchable, Justice Scarpulla’s courtroom now contains an “86-inch screen to display documents, a podium with a document viewer and a USB port and small screens for attorneys and the judge.”   The new 86-inch screen permits attorneys to highlight and mark up documents. It also allows attorneys to scan documents while at the podium during trial, which helps to avoid unnecessary emergencies and courtroom delays.  Additionally, in an effort to protect client confidentiality, the courtroom contains a separate USB port for attorneys to use if their documents are highly sensitive so that they cannot be accessed through the court’s Wi-Fi. This new technology also permits attorneys to attend conferences via Skype, thus conserving time and expense.

In addition to the 86-inch display screen, the jury box in the courtroom was expanded and is now wheelchair accessible and offers technological assistance to jurors who are hearing or vision impaired. Similarly, jurors will no longer be inundated with reams of documents, as this new technology permits attorneys to provide jurors with a flash drive to access and review the documents in a more efficient matter.  In that regard, Justice Scarpulla stated that “we can promise a juror that they’re not going to be here for six months looking through documents.”  All of these technological improvements will undoubtedly have a positive effect on the willingness of people to serve as jurors and significantly impact efficiency in the courtroom.

“We think it’s important to have the right technology to give the business community in New York the sense that we could compete with the best courts in the world,” Justice Scarpulla opined.  Justice Scarpulla’s courtroom is the first, of what will hopefully be many New York courtrooms, to utilize this innovative technology that will make New York courts a much more desirable venue to handle complex commercial disputes.

The Commercial Division has initiated other changes that reflect its efforts to increase efficiency through technology.  For example, the Commercial Division promulgated Rule 11-e(f), which went into effect on October 1, 2018, encouraging parties to “use the most efficient means to review documents, including electronically stored information.” This new Rule, which addresses the use of technology-assisted review in the discovery process was discussed at length in Kathryn Cole’s blog, titled Important Update for Those Who Practice in the Commercial Division of the NYS Supreme Courts.

As technology pervades the legal profession, it is crucial that practitioners stay current with the changing technological landscape moving forward. Make sure you stay up-to-date with judge’s part rules and changes in the Commercial Division that we are certain to see in the future.

For more practice tips in New York Courts, subscribe to the New York Commercial Division Practice Blog.

It is no secret by now that remote proceedings are here to stay. Driven at first by the safety protocols related to the COVID-19 pandemic, remote proceedings have outlived those protocols, and they remain the preferred forum for many parties and Justices.  The recent pages of this blog are filled with caselaw and proposed rule changes underscoring the reality that virtual proceedings will remain an integral part of the practice of law for the foreseeable future (see this post regarding Commercial Division Rule 1 and requests to appear remotely, or this post concerning remote depositions).

On September 23, 2022, the Office of Court Administration sought public comment on a proposal by the Commercial Division Advisory Council (“CADC”) to amend Commercial Division Rule 36 to expressly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, upon a finding of good cause.

Rule 36, titled: Virtual Evidentiary Hearing or Non-jury Trial, currently provides that, if there is appropriate videoconferencing technology, the court “may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.”  The proposed amendment would clarify that the court may “with the consent of the parties, or upon a motion showing good cause, or upon the court’s own motion, conduct an evidentiary hearing or non-jury trial utilizing video technology.” 

This proposed change follows a similar change to Commercial Division Rule 37.  As discussed in this post, new Commercial Division Rule 37 provides that the courts may “upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means.”  If the court can order that depositions can be remote, why can’t it order the same for evidentiary hearings and bench trials? 

The CDAC notes that the proposed amendment simply clarifies the authority that the courts already have.  Relying mostly on Judiciary law § 2-b(3), which empowers courts with the authority to “devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it,” several courts have concluded that even without amendment to the Commercial Division Rules, courts have the authority to order remote proceedings over the objection of a party (see, e.g., Quattro Parent LLC v Rakib, 2022 N.Y. Slip Op. 30190[U], 3 [NY Sup Ct, NY Co 2022] [Masley, J.]; Wyona Apartments LLC v Ramirez, 70 Misc 3d 591 [Civ Ct, Kings Co 2020]).

The more interesting portion of the proposal lies in the CADC’s proposed addition of subsection (d), which provides:

In connection with any opposed motion [to proceed with a virtual hearing or non-jury trial], the Court shall determine the existence of “good cause” by considering at least the following factors:

(1) the overall efficiency of conducting a virtual proceeding, including but not limited to consideration of the convenience to all parties involved, the time and costs of travel by counsel, litigants, and witnesses to the location of the trial or hearing, and avoiding undue delay in case management and resolution;

(2) the safety of the parties, counsel, and the witnesses, including whether counsel, the litigants, and the witnesses may safely convene in one location for the trial or hearing; and

(3) Prejudice to the parties.

Enumerating these factors in Rule 36, the CADC reasons, “will allow the Commercial Division to increase efficiency and to reduce unnecessary litigation.” 

These factors seem to favor remote proceedings.  Courts have already held that virtual proceedings do not prejudice a party (see A.S. v N.S., 68 Misc 3d 767, 768 [Sup Ct, NY Co 2020]), so factor (3) is a non-factor in all but exceptional circumstances.  And it is difficult to imagine a circumstance where factor (1) or (2) would counsel in favor of an in-person hearing; remote proceedings will always entail less travel time and costs and greater “safety.”  If courts cabin their consideration to the factors proposed by the CDAC, we will see a lot more virtual proceedings.

The proposed rule also permits courts to consider other factors. Depending on the circumstances, the security of the proceedings and risk of unauthorized electronic access, the risk that a witness may get off-camera coaching during their testimony, and the effective presentation of evidence (particularly non-documentary evidence) might all weigh into the Court’s analysis. 

Comments to the proposal are due by November 23, 2022, by email to rulecomments@nycourts.gov.  In the meantime, counsel should keep their video-cameras and Zoom-suits handy.

A few years back, in a post entitled What the Commercial Division Has Done for Us Lately, we commented on a 2019 report from the Commercial Division Advisory Council, which extolled “The Benefits of the Commercial Division to the State of New York” since its inception in 1995, including how it “has made the business litigation process in New York more cost effective, predictable and expeditious, and has thereby provided a more hospitable and attractive environment for business litigation in New York State.”

The business and legal communities in New York continue to carry the banner of the Commercial Division.  And for good reason.  As highlighted in a recent webinar sponsored by the Business Council of New York, the Commercial Division has become a preferred forum — if not the preferred forum — for resolution of complex business disputes and remains available to businesses of all sizes and all locations, including outside the State of New York.  Indeed, according to Advisory Council chair Robert L. Haig, himself a webinar participant:

Any business, which has a choice, should seriously consider bringing its business litigation in New York and including choice-of-forum clause in its contracts, specifying the Commercial Division as the forum for resolving disputes arising under the contract.

Any business that is concerned about the predictability and the cost of litigation should consider moving its operations, its markets, and even its headquarters to New York State.

Seriously?  New York?  After all, as noted by moderator Heather Briccetti of the Business Council at the outset of the webinar, “New York is a very challenging environment to do business, both in terms of taxes and regulation.”  So why choose to litigate in or even move your company to New York?

Well, according to the various webinar participants — among them representatives from the Association of Corporate Council, the American Bar Association and several current and retired judges, including former Manhattan ComDiv Justice O. Peter Sherwood and Queens County ComDiv Justice Marguerite A. Grays — it’s primarily because the Commercial Division is made up of sophisticated and responsive judges and court staff who possess the requisite commercial expertise to handle a strictly commercial docket, and who have developed a body of well-reasoned and consistently-applied precedent and rules on which businesses and their counsel can predictably rely in the efficient and effective resolution of their disputes.  The fact that the Commercial Division remains on the cutting edge of courtroom technology and other procedural innovations doesn’t hurt either, especially in the COVID and post-COVID era.

Sarah J. Mugel, General Counsel for National Fuel Gas Company, a multi-billion dollar diversified energy company headquartered outside Buffalo, offered an interesting perspective in terms of what matters to corporations and in-house counsel when faced with litigation:

Like most corporations, National Fuel tries to avoid litigation because of its cost and risk, and because of the diversion it causes to those non-legal employees who are involved, taking them away from their regular duties.  While there are many disadvantages to being involved in litigation, the process can be at least somewhat improved when the courts make efforts to do so.  And the Commercial Division . . . has made substantial efforts to improve the litigation process, and companies generally regard these efforts as successful.

The Commercial Division helps businesses resolve our disputes quickly and cost-effectively so we can get on with our business and avoid getting bogged down in litigation quagmires — which is truly, even for the lawyers, what we look forward to.

Drawing on the aforementioned 2019 ComDiv Advisory Council report, Chief Administrative Judge Lawrence K. Marks also offered an interesting perspective from the point of view of economics — particularly, the economic benefits of the Commercial Division to New York, its courts, and its citizens:

The Commercial Division is unique . . . in its ability to help increase business activity within the State, which in turn generates tax revenue and provides employment. These unique characteristics benefit our entire court system and all New Yorkers.

For example, a division or subsidiary that generates $10 billion in annual revenue might incur employee compensation costs of as much as $6 billion, which would result in annual New York income tax revenue of as much as $500 million. The move to New York might also result in annual New York corporate income tax revenue of as much as $50 million.  Thus, the move of a division or subsidiary of one company to New York could result in additional New York income tax revenue of as much as $550 million each year. The annual operating budget for the New York state court system is currently $2.4 billion. If the benefits of greater access to the Commercial Division help to persuade a company to move a $10 billion division to New York, one such move could pay for nearly a quarter of the entire annual operating costs of our court system.

So there you have it.  Sound reasons — from the bench, as it were — for moving your business to rather than from New York, even in this era of mass exodus to more tax-friendly states.  We’ve said it before; we’ll say it again:  Get thee to the Commercial Division!

As we approach the 30th Anniversary of New York’s Commercial Division, it’s fair to say that over those 30 years, the Commercial Division has held true to its aim of improving the efficiency and judicial treatment of complex commercial matters.  One of the primary ways it does so is through its commitment to continually review and revise its Commercial Division Rules to better meet the needs of the parties and cases appearing before it.  Implementing and enforcing rules developed with efficiency in mind and after careful consultation with Judges and practitioners alike is no small contributor to the success of the Commercial Division.

The latest advancement of the Commercial Division Rules concerns the phase of litigation that has recently exploded in its importance and cost: the collection, review, and production of electronically stored information (“ESI”).

On March 7, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Rules 1, 8, 9, 11-c, 11-e 11-g and Appendices of section 202.7(g) of the uniform rules of practices for the Commercial Division of the Supreme Court and county courts.  These changes took effect on April 11, 2022.

The majority of these amendments to the Commercial Division Rules are aimed at modernizing and streamlining the rules concerning ESI.  Here are some notable highlights:

Continue Reading Updates to Commercial Division Rules Concerning Discovery of ESI

Much ink has been spilled over the last couple of years, including here at New York Commercial Division Practice, on the topic of practicing law remotely in the COVID (and likely post-COVID) era.  As we all brace for the coming wave of Omicron, which may well be the fastest spreading virus in human history, let’s take a quick look at the newest ComDiv rule on the topic — Rule 37 Remote Depositions — which went into effect on December 15, 2021.

We’ve reported on the recent trend of remote depositions on at least three occasions over the last year or so, including the ComDiv Advisory Council’s September 2020 proposal for, and request for public comment on, the new rule.  As noted in the memo supporting the recommendation, in light of COVID, whereas “remote depositions were previously the exception, they are now the rule.”

But more than that, “[t]here is good reason . . . to encourage their continued use . . . after the pandemic is brought under control.”  Why?  Because, as we all have learned from experience over the last couple years, “remote depositions can be quicker, easier, less costly, and more efficient than in-person depositions.”

New ComDiv Rule 37 — which generally permits courts, “upon the consent of the parties or upon a motion showing good cause, [to] order oral depositions by remote electronic means — is accompanied at new Appendix G by a fulsome template stipulation setting forth a remote depo protocol that addresses common practical concerns regarding technology, security, private communications, and the use of exhibits.  Some key excerpts:

  • Administration of Remote Depo Services.  “An employee . . . of the [court reporting] service provider shall . . . be available at each remote deposition to record the deposition, troubleshoot any technological issues that may arise, and administer the virtual breakout rooms.”
  • Audio and Video Clarity.  “Each person attending a deposition shall be clearly visible to all other participants, their statements shall be audible to all participants, and they should each use best efforts to ensure their environment is free from noise and distractions.”
  • Communications During Questioning.  “Deponents shall shut off electronic devices . . . and shall refrain from all private communication during questioning on the record.”
  • Use of Virtual Breakout Rooms.  “Parties may use a breakout-room feature, which simulates a live breakout room through videoconference[, but c]onversations in the breakout rooms shall not be recorded . . . [and] shall be established by . . . and controlled by the [court reporting] service provider.”
  • Collaboration and Advance Troubleshooting.  “The parties agree to work collaboratively and in good faith with the court reporting [service provider] to assess each deponent’s technological abilities and to troubleshoot any issues at least 48 hours in advance of the deposition . . . [and] also agree to work collaboratively to address and troubleshoot technological issues  that arise during a deposition.”
  • Sufficient Technology.  “Counsel shall use best efforts to ensure that they have sufficient technology to participate in a [remote] deposition . . . [and] shall likewise use best efforts to ensure that the deponent has such sufficient technology.”

To be sure, given the ominosity of Omicron, the new ComDiv rule concerning remote depositions comes to us at an appropriate time.  But given the efficiencies associated with the practice that we all have discovered along the way, and with essential safeguards now in place at Appendix G, one can expect frequent and ongoing invocation of Rule 37 long after the infection curve has flattened.

 

As we all are acutely aware, during the last 21+ months, the normally slow-to-change practice of law has been thrust into overdrive, forcing lawyers and courts to quickly pivot from a largely in-person practice to virtual.

New York courts in particular have done an incredible job expanding access to litigants online by, among other things, expanding e-filing capabilities, conducting virtual appearances for conferences and oral arguments, encouraging remote depositions, and even conducting trials online. I’ve discussed with colleagues and adversaries alike the newfound efficiencies that have emerged out of the necessity caused by the COVID-19 pandemic.

New York’s Commercial Division, ever the agent of progress, keeps a good thing going with respect to virtual access. Just last week, on October 19, 2021, Chief Administrative Judge Lawrence K. Marks promulgated new Commercial Division Rule 36 (Administrative Order 299/2021), which will allow Commercial Division judges to conduct virtual evidentiary hearings and non-jury trials on consent of the parties.

In a memo published by the Commercial Division Advisory Council last June 2020, the Advisory Council advocated for this new rule (adopted in large part by AO/299/21). Among the benefits cited are the cost and time savings that virtual conference technology would bring. A global business hub, New York is the venue of choice for much commercial litigation around the country and around the world. Rule 36 will remove many of the obstacles in coordinating party, witness, lawyer, and court scheduling by largely reducing or eliminating the time and cost of necessary travel.

The public’s collective comfort with using video conferencing technology has only increased since the Advisory Council’s June 2020 memo. Having already incorporated such technologies into many other facets of the legal practice (i.e. “Zoom meetings”, remote depositions, etc.), expanding its use to evidentiary hearings and bench trials is not much of a stretch. Video conferencing technologies have only improved in efficiency and security after months of rapid development necessitated by stay-at-home orders, travel bans, and quarantine mandates from earlier in the pandemic (some of which still apply in certain jurisdictions).

It is important to note that Rule 36 requires the consent of all parties. Additionally, the Rule is permissive, not mandatory, meaning that even if all parties consent, ultimately the availability of virtual evidentiary hearings and non-jury trials lies within the Court’s discretion. This flexibility allows for the tailored application of video conferencing technologies to evidentiary hearings and/or bench trials where a virtual appearance would be appropriate.

Given the technological developments in this area over the past 21+ months, and given the encouragement by the judiciary, cost-savings to the client, and overall efficiencies promoted, I have no doubt that Rule 36 will be a welcome addition to practitioners who find themselves regularly practicing in the Commercial Division.

So, without further ado, we give you Commercial Division Rule 36:

Rule 36. Virtual Evidentiary Hearing or Non-jury Trial.

(a)        If the requirements of paragraph (c) of this Rule are met, the court may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.

(b)       If the requirements of paragraph (c) of this Rule are met, the court may, with the consent of the parties, permit a witness or party to participate in an evidentiary hearing or a non-jury trial utilizing video technology.

(c)        The video technology used must enable:

(i)        a party and the party’s counsel to communicate confidentially;

(ii)       documents, photos and other things that are delivered to the court to be delivered to the remote participants;

(iii)      interpretation for a person of limited English proficiency;

(iv)      a verbatim record of the trial; and

(v)       public access to remote proceedings.

(d)      This Rule does not address the issue of when all parties do not consent.

Rule 36 becomes effective as of December 13, 2021.

As we’ve mentioned time and again on this blog, since its inception in 1995, New York’s Commercial Division has continued to not only be a leader in developing and shaping commercial law, but it is also on the forefront of instituting rules with the goals of fostering litigation efficiency, cost reduction, and implementation of technology in the courtroom. The Commercial Division Advisory Council, which is tasked with keeping abreast of new developments relating to commercial litigation in New York and providing advice concerning important and cutting-edge issues of interest to practitioners, is instrumental in maintaining the Commercial Division’s national (and even international) reputation as a leading business court.

On September 14, 2021, the New York State Office of Court Administration issued a request for public comment by the Advisory Council to amend Commercial Division Rule 11 to include a preamble about proportionality and reasonableness and to add provisions allowing the Court to direct early case assessment disclosures and analysis prior to and after the Preliminary Conference. This recent request piggybacks off another, lengthier and robust set of proposed modifications to Rule 11, as recently reported by my colleague, James Maguire.

The preamble to Commercial Division Rule 11 proposed by the Advisory Council provides the following:

Acknowledging that discovery is one of the most expensive, time-consuming aspects of litigating a commercial case, the Commercial Division aims to provide practitioners with a mechanism for streamlining the discovery process to lessen the amount of time required to complete discovery and to reduce the cost of conducting discovery. It is important that counsel’s discovery requests are both proportional and reasonable in light of the complexity of the case and the amount of proof that is required for the cause of action.

The stated rationale behind the proposed preamble is to reaffirm or re-emphasize the guiding principles of proportionality and reasonableness in the pursuit of discovery in the Commercial Division which two concepts “must govern discovery in all cases, including the most intricate, difficult and complex Commercial Division case.” As further noted by the Advisory Council, proportionality and reasonableness are specifically included in the proposed preamble to Rule 11 so that “no party or counsel may argue that these concepts are modifying any legal standards or Rules that apply to the scope of discovery.”

The Advisory Council also recommended the inclusion of several additional provisions allowing the Court to direct early case assessment disclosures and analysis prior to and after the Preliminary Conference. One such proposed provision affords the Court the ability to direct the plaintiff to produce a document “stating clearly and concisely the issues in the case prior to the preliminary conference,” and to the extent that there are any counterclaims, to direct the counterclaimant to produce a document stating clearly and concisely the issues asserted in the counterclaims. The proposal also provides the Court with the discretion to direct both of the parties to produce a document stating each of the elements in the causes of action at issue and the facts needed to establish their case. The stated goal for this recommendation is to “streamline” the discovery process “so that that discovery is aligned with the needs of a case and not a search for each and every possible fact in the case.”

Although the suggested proposals are not earth-shattering, any proposal that purports to “streamline” the discovery process is welcome.

Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. Comments must be received no later than November 15, 2021.

In March 2020, the New York State Courts and attorneys’ offices all over the state shut down as part of the public’s broad effort to slow the spread of the Coronavirus, and the legal profession quickly transitioned to remote operations.  Remote team meetings, court appearances, arbitration hearings, networking events, and depositions were all borne from the necessity imposed by closed offices and social distancing.

Despite the sometimes steep learning curve associated with the remote conferencing technology and systems, remote proceedings became surprisingly effective.  Lawyers who once swore that there was nothing like being in the same room as their adversary found that, in many cases, the Zoom or Teams suite works just fine.  As a consequence, one need not look beyond the pages of this blog to see that for many, remote practices are here to stay.  Commercial Division Rule 1 now allows attorneys to request to appear remotely, saving client costs and avoiding the unnecessary risk of infection.  In February, we wrote about the Commercial Division Advisory Committee’s proposed rule authorizing and regulating the use of remote depositions.  The proposed rule has received favorable comment.

Continue Reading Even as Pandemic Wanes, Remote Depositions Remain the New Normal

New York’s Commercial Division has continuously taken the lead as an innovative forum, proposing rule changes that are aimed at increasing efficiency and overall effectiveness of the litigation process.  In the past several years, discovery challenges surrounding electronically stored information (“ESI”) have taken center stage in a majority of cases before the Commercial Division. Understanding these challenges, on September 7, 2021, the Commercial Division Advisory Council (“CDAC”) published a proposal, that includes several new amendments to the current e-discovery rules.  Specifically, the CDAC advised that “[t]he goal of the revisions is to address e-discovery in a more consolidated way, modify the rules for clarity and consistency, expand the rules to address important ESI topics consistent with the CPLR and caselaw, and to provide further detail in Appendix A – Proposed ESI Guidelines than is practical in the Commercial Division Rules.”

One significant modification by the CDAC’s proposal revolves around several distinct changes to Rule 11-c concerning discovery of ESI.  First, the proposal seeks to consolidate all ESI discussion from the current version of Rule 8 into Rule 11-c, including directing parties to confer on electronic discovery topics prior to the Preliminary Conference.  Second, the proposed revisions entirely remove Rule 11-e(f), which discusses using efficient means to identify ESI for production, including technology-assisted review (“TAR”), and move the substance of the rule into Rule 11-c(e). Third, the proposal includes noteworthy additions to Rule 11-c on the issue of cost efficiency for parties and non-parties in producing ESI.  The proposed changes include cost-sharing directives requiring that (a) “[t]he costs and burdens of ESI shall not be disproportionate to its benefits;” and (b) “[t]he requesting party shall defray the reasonable expenses associated with a non-party’s production of ESI, in accordance with Rules 3111 and 3122 (d) of the CPLR.”  Fourth, the proposed revisions draw on rules / topics from the Nassau County Commercial Division ESI Guidelines, such as the inadvertent or unintentional production of ESI documents that are subject to attorney-client privilege, and a requirement that a party take reasonable steps to preserve ESI documents that it has a duty to preserve.

In addition, the CDAC’s proposal includes material changes to Appendix A to Commercial Division Rule 11-c.  For starters, the revised Appendix A would substitute the current non-party ESI Guidelines with “new guidelines to cover all aspects of ESI, from parties and non-parties alike.”  Further, the proposed ESI Guidelines, which the CDAC acknowledges are advisory rather than mandatory, include a comprehensive list of e-discovery topics that are not addressed by the current non-party ESI Guidelines, including but not limited to:

  • Reminding counsel of the importance of technical competence in handling e-discovery;
  • Guidance on the defensible preservation and collection of ESI sources;
  • Information on the selection of appropriate procedures and technologies for producing ESI, including TAR;
  • Setting forth a process for parties to address ESI that is not reasonably accessible due to undue burden or cost; and
  • Protection against waiver for privileged ESI that is inadvertently produced.

Recognizing that e-discovery law is constantly changing, the CDAC believes that the proposed ESI Guidelines can be updated on a continuing basis without requiring any amendments to the Commercial Division Rules themselves.  Persons who wish to comment on this proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004.  Comments must be received no later than November 8, 2021.