I think it’s fair to say that Commercial Division judges have little time for discovery disputes. If one peruses the individual practice rules of many of the ComDiv judges, one typically finds language all but prohibiting discovery motions. And ComDiv Rule 14, which itself provides that “[d]iscovery disputes are preferred to be resolved through court conference as opposed to motion practice,” expressly gives the judges the discretion to do so (“If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case”). If a particular ComDiv judge’s individual rules are silent on the matter, then the default rule in Rule 14 applies. In which case, counsel are restricted to (i) making a good-faith attempt to resolve the dispute(s) amongst themselves; and (ii) if unsuccessful on their own, submitting competing letters outlining their respective positions and asking for the opportunity to conference the dispute(s) with the court.
Commercial Division judges also have little time for attorney gamesmanship. Again, the ComDiv Rules expressly support this sentiment, as one need look no further than the Preamble to the Rules, which was amended some five years ago to insist on, among other things, “that the practicing bar be held rigorously to a standard of commitment and professionalism of the highest caliber.” This includes conduct at depositions. Continue Reading Playing Nice in the Litigation Sandbox
