A recent decision from the Manhattan Commercial Division reminds us of the ramifications of non-compliance with discovery obligations. Although in my experience courts (especially the Commercial Division) typically do not like to get involved in discovery disputes (see, e.g., ComDiv Rule 14 requiring parties to meet and confer to resolve all discovery disputes)

Arbitration can be an effective alternative for parties seeking to avoid drawn-out and costly litigation. As a result, it has become common practice for parties to negotiate arbitration clauses into their agreements. However, parties consenting to arbitration should be prepared to abide by an arbitrator’s discretion, especially regarding discovery. If not, parties might be left

The burden of establishing personal jurisdiction over a defendant rests with the plaintiff. Service of process is a necessary component of jurisdiction, and it is not complete until proof of service is filed. Ordinarily, defective service of process is not a jurisdictional defect and does not warrant dismissal. But when it comes to “affix and mail” service under CPLR § 308(4), the statutory requirement of “due diligence” must be strictly observed, otherwise dismissal may result.  A recent decision from Manhattan Commercial Division Justice Robert Reed in Arena Special Opportunities Fund, LLC v McDermott discusses just how much diligence is required.Continue Reading If the Service Was Poor, You’ll Have to Do More – How Much Diligence Is Due for Affix and Mail Service?

The old game of “hide-and-seek” brings many of us back to our childhood as one of our favorite ways to pass time during the summer. As commercial practitioners know, the concept of serving a summons and complaint in a case can be similar to playing an adult version of “hide-and-seek.”  However, the days in which service of a summons and complaint can only be accomplished by physical delivery to a defendant seem outdated in our ever-growing technology reliant society. A recent decision from Manhattan Commercial Division Justice Robert R. Reed confirms as much, finding that service of process by email will suffice when dealing with an elusive litigant.Continue Reading Ready or Not, Here I Come: The Expansion of Substitute Service by Email

Section 3101(a) of the CPLR provides for the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” This standard requires the disclosure “of any facts which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Madia v CBS Corp, 146 AD3d 424, 424-425 [1st Dept 2017]). Under CPLR 3124, a party making a motion to compel discovery must demonstrate that the discovery sought is “material and necessary” and must meet the test of “usefulness and reason.” But, parties are at liberty to narrow the, otherwise, broad statutory discovery guidelines provided by the CPLR. A recent decision from Justice Robert Reed of the Manhattan Commercial Division in Latin Mkts. Brazil, LLC v McArdle reminds us that the court will abide by the terms of a voluntary waiver of discoverable materials absent any mistake, fraud, collusion, or accident.Continue Reading To Disclose or Not to Disclose: The Importance of Putting Everything in Writing

Section 3104 of the CPLR authorizes courts to appoint a judge or referee to supervise disclosure proceedings. The appointed referee enjoys “all the powers of the court” to resolve discovery disputes. A party seeking review of a referee’s order must, within five days after the order is made, file a motion in the court in which the action is pending. Lawyers involved in supervised disclosure proceedings should be familiar with the requirements for review contained in CPLR 3104(d). In a recent decision from New York County’s Commercial Division, Justice Robert R. Reed reminds us that only strict adherence to those requirements will suffice to obtain review.Continue Reading “C’mon Ref!” – Right and Wrong Ways to Challenge the Call in a Supervised Disclosure Proceeding

Commercial Division Rule 11-f establishes that a party may serve a notice or subpoena on any legal or commercial entity. Upon receiving this notice, the responding party must then designate and produce a corporate representative for the deposition, who is prepared to testify about information known or reasonably available to the entity concerning topics listed in the deposition notice. While a corporate representative deposition may serve as a great discovery tool, it may also serve as a dangerous trap. In a recent decision from the Manhattan Commercial Division, Justice Andrea Masley reminds us that parties who attempt to depose an additional corporate representative of the same entity are fighting a losing battle.Continue Reading Commercial Division Says “No Chance” on “Second Chance” Deposition of a Corporate Representative

Commercial Division Rule 11-b governs a party’s obligation to produce a log of documents withheld on the basis of privilege.  Enacted in 2014, Rule 11-b substantially streamlines the privilege log process by encouraging parties, “where appropriate,” to exchange categorical privilege logs, rather than document-by-document logs.  Rule 11-b instructs the parties to meet-and-confer over the issue

For commercial practitioners who happen to be fans of the TV series “The Office,” Dwight Schrute’s “Learn Your Rules, You Better Learn Your Rules” jingle perfectly describes the constant theme of practicing before the New York Commercial Division. Since its inception in 1993, the Commercial Division has garnered the reputation of placing a

When the Court orders you to attend a Continuing Legal Education (CLE) class on civility “for the harm [you’ve] done to the [legal] profession”– not to mention issues you five-figures in sanctions – you know you’ve done something very, very wrong.  And that’s exactly what happened last month when Manhattan Commercial Division Justice Andrea Masley