As readers of this blog have come to appreciate, we here at New York Commercial DCheck the Rulesivision 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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For those civil practitioners who don’t regularly practice in the Commercial Division – beware.  The Unified Court System’s Advisory Committee on Civil Practice (the “Committee”) has proposed that nine (9) Commercial Division Rules be broadly adopted by other, non-commercial civil courts.  These nine rules all have one common goal: to promote efficiency in New York courts.

Earlier this year, the Committee conducted a detailed evaluation of the Commercial Division Rules (22 NYCRR 202.70[g]) to determine which of those rules, if any, should be broadly adopted by non-commercial courts.  In a July 2018 report (the “Report”), the Committee recommended broader application of the following Commercial Division Rules:

Rule 3(a) – Appointment of a court-annexed mediator (as amended)

  • Rule 3(a) provides that a judge may direct, or counsel may seek, the appointment of an uncompensated mediator. This rule also allows counsel for all parties to stipulate having the case determined by a summary jury trial.  The Committee recommended statewide adoption of this rule, with a minor amendment stating that the court may advise (rather than direct) the appointment of a court-annexed mediator.  This rule will promote judicial efficiency and potentially result in the earlier resolution of cases through ADR.

Rule 3(b) – Settlement conference before a judge not assigned to the case

  • In addition to Rule 3(a), the Committee recommended adoption of paragraph (b), which provides that counsel can request a settlement conference before another judge who is not the judge assigned to the case.  The Committee noted, however, that it may be difficult to implement Rule 3(b) in some downstate counties where judicial resources may not be as readily available.

Rule 11-a – Limitations on interrogatories

  • The Committee also recommended statewide adoption of Rule 11-a, which, among other things, sets certain limitations on the use of interrogatories (i.e., interrogatories cannot exceed more than 25 in number, including subparts, and are limited to succinct categories). In the Committee’s view, this proposed amendment “would result in increased efficiency and streamlined litigation” and “serve as a useful guideline for limiting unnecessary, burdensome or abusive discovery practices.”

Rule 11-b – Privilege Logs (in part)

  • To reduce the time and costs associated with preparing document-by-document privilege logs, the Committee recommended the partial adoption of Rule 11-b, which permits the use of categorical privilege logs.  According to the Committee, the categorical approach “is more efficient and cost-effective for the parties, helps streamline litigation and facilitates expeditious court review.”  However, the Committee is not in favor of Rule 11-b’s provision regarding cost allocation, which permits a party required to produce a document-by-document privilege log to apply to the court for costs associated with that log.  Rather, the Committee recommends that, in cases where the parties disagree about which approach to follow, the court should determine whether the categorical approach or the document-by-document approach will be used.

Rule 11-d – Limitations on depositions

  • Similar to the statewide adoption of Rule 11-a (limitations on interrogatories), the Committee recommends that Rule 11-d’s limitations on depositions be broadly adopted. Under this rule, the number of depositions is presumptively limited to ten (10) per party, and each deposition will be limited to seven (7) hours per deponent.  These limits can be changed by stipulation or by court order upon a showing of good cause.

Rule 11-e – Responses and objections to document requests (as amended)

  • It is no mystery that boilerplate objections have become widely disfavored among judges, and are even sanctionable in some courts. Thus, the Committee proposed the broad adoption of Rule 11-e, which requires parties responding to discovery requests to either state that the production will be made as requested, or state with reasonable particularity the grounds for any objection.  The proposed rule will also require a responding party to state, at the time if disclosure, whether the production of documents is complete, that there are no responsive, non-privileged documents in its possession, or explain why the production is not complete.

Rule 19-a – Statement of material facts for summary judgment motions

  • The Committee recommended statewide adoption of Rule 19-a, “as it is likely to greatly assist in narrowing and clearly setting forth the material issues.” The Committee further recommended that a statement of material facts be required in all cases involving summary judgment, and not just in cases “where the court directs.”

Rule 20 – Temporary restraining orders

  • This Commercial Division Rule requires notice to an adverse party of any application for a temporary restraining order, unless the moving party can demonstrate that “significant prejudice” would result from such notice. The Committee recommended statewide adoption of this rule because it “advances a just result by giving all parties notice of the issues and an opportunity to comment.”

Rule 34 – Staggered court appearances

  • Most judges generally have specific motion and conference days and, most parties are directed to appear at a specific time on such day (for example, Tuesdays at 9:30 a.m.). The result is often a courtroom packed with attorneys waiting to be heard, sometimes for hours. Rule 34, however, is intended to encourage “court staggered appearances” by providing litigants specific time slots to appear, depending on the nature of the appearance.  The goal of this proposed rule is obvious: to reduce congestion in the courtrooms and eliminate the inordinate amount of time attorneys spend waiting to be heard, thus reducing client costs and increasing courtroom efficiency.

The Committee is now seeking public comment on the recommendations set forth above.  However, the Committee determined that wholesale adoption of the Commercial Division Rules statewide is not warranted.  Indeed, many of the commercial division rules already exist in one form or another (i.e., Rule 1 [appearance by counsel with knowledge and authority, which is already incorporated into most conference orders; Rule 11-f [deposition of entities, which is already adequately addressed in CPLR Articles 23 and 31, respectively]) and, some of the specific rules may actually add to the costs of litigation or place additional burdens on litigants (i.e., Rule 21 [providing courtesy copies in e-filed cases, which, according to the Committee, is “contrary to the goals of paperless electronic litigation”]).

So what does this mean for civil practitioners?  Whether you practice mainly in the Commercial Division or in other civil courts, the Office of Court Administration is seeking to streamline litigation in non-commercial cases and make civil practice in all courts more efficient and practical.  If these rules are ultimately adopted statewide, ADR will become more commonplace, abusive discovery practices, such as boilerplate objections and excessive interrogatories, will not be tolerated, discovery will become more streamlined and efficient, and hopefully, litigants won’t be waiting in court for hours until their case is finally called.

The Administrative Board is now seeking public comment on the recommendations set forth in the Advisory Committee’s Report.  Those wishing to comment on the Report should e-mail their submissions to rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, New York 10004.  Comments must be received no later than January 15, 2019.

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Over the past year or so, we have made a point of highlighting in the “Check the Rules” series on this blog periodic updates to the individual practice rules of certain Commercial Division Justices, including Justice Eileen Bransten in New York County (twice, in fact), Justices Marguerite A. Grays and Leonard Livote in Queens County, and Justice Sylvia G. Ash in Kings County.

Continuing with this theme of local-rule vigilance, Commercial Division practitioners should take note some recent changes to the individual practice rules of Manhattan Commercial Division Justice O. Peter Sherwood.

Justice Sherwood’s Practices for Part 49, which were revised as of this month, provide some notable additions (and omissions) from his prior rules, which dated back to May 2014 before most of the Commercial Division Advisory Council’s new-rule proposals and amendments were adopted and implemented.

Be Prepared, Be Authorized. Justice Sherwood opens his practice rules with an express and emphatic reminder to attorneys practicing in his Part of the requirements under Rule 1 of the Commercial Division Rules that “counsel . . . must be fully familiar with the case . . . and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients.” In other words, appearing in Part 49 is no “cattle-call.” Attorneys should have factual command of their cases, as well as the requisite authority to bind their clients.

Separate and Describe Your Exhibits. Justice Sherwood now requires attorneys practicing in his Part who wish to annex exhibits to their correspondence or motion papers to separately e-file their exhibits and designate them with a “descriptive title.” In other words, a simple designation of “Exhibit A” won’t cut it. Attorneys must provide a description (e.g. “Operating Agreement, dated as of September 20, 2018”) so that adversaries and court personnel viewing the docket or other notice of filing can immediately understand what has been filed.

Get Advance Permission to Adjourn Appearances. Justice Sherwood now requires that requests for adjournment be submitted a full two business days in advance of the scheduled appearance. Justice Sherwood conferences his cases on Tuesdays, so that means attorneys must get their requests for adjournment in by no later than Thursday of the prior week.

Check Your E-Mail. Justice Sherwood’s new rules provide that the court may choose to communicate with counsel via e-mail “regarding scheduling matters or to make certain inquiries.” Note, however, that this line of communication only goes one way. It does not mean that attorneys practicing in Part 49 may “initiate communication with the court via email” or “use e-mail to make arguments.”

Complete Party Discovery Before Bothering Non-Parties. Justice Sherwood “strongly encourages” attorneys practicing in his Part to “attempt to confine their requests to parties to the action and resort to third-party disclosure only when it reasonably appears that the information being sought is otherwise unavailable.” Justice Sherwood also requires that all non-party subpoenas be “simultaneously served” on all parties, and that all documents and information produced in response be exchanged among all parties within five days of receipt.

Follow Instructions When Seeking to File Under Seal. Justice Sherwood’s updated practice rules provide specific instructions concerning the filing of documents under seal:

  • Applications to file under seal must be made by Order to Show Cause, which must be preceded by a meet-and-confer regarding the documents proposed for seal.
  • Motions will be considered in light of the limitations imposed under applicable case law, and the movant must propose redactions “as opposed to wholesale sealing.”
  • Any document proposed for seal must be filed in its original, un-redacted form as an exhibit, with the proposed redacted version filed “as a subset of that exhibit.”
  • All motions must be accompanied by a joint index of the documents proposed for seal, including the basis for sealing and any objection thereto.

Finally, as for notable omissions, Justice Sherwood appears to have dispensed with his former requirement – which, as far as I’m aware, was entirely unique to his Part – that  motion submissions also be provided to the court “in .rtf format on a computer disk.”

**Nota Bene** – Attention Kings County Commercial Division practitioners: How much is your case worth? The general practice rules for the Kings County Commercial Division also were updated this month to double the monetary threshold from $75,000 to $150,000.

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 Commercial Division litigators often hope that mediation will lead to a negotiated settlement, but their expectation – based on their prior experience –  is that it will not.  In this sense, mediation seems to have significant unrealized potential as a settlement tool in the Commercial Division.

 

A new proposal of the ADR Committee of the Commercial Division Advisory Council, put out for public comment on June 22nd by OCA, seeks to tap into some of that unrealized potential in a relatively simple way: by encouraging parties to Commercial Division litigation who are going to mediation to select jointly their preferred mediator.  Could this simple idea make a difference?  Evidence cited by the ADR Committee- both anecdotal and statistical – suggests that mediation is much more likely to be successful when the parties agree on their mediator.

 

In its proposal, the ADR Committee noted that joint selection of a mediator is a factor consistently cited by Bar Associations for enhancing the effectiveness of mediation in Commercial Division cases but noted that because of the current language of Commercial Division Rule 3(a) – that “[a]t any stage of the matter, the court may direct or counsel may seek the appointment of an uncompensated mediator” (emphasis added) – the process of some court annexed mediation programs is for a mediator to be appointed from a roster instead of first giving the parties the opportunity to agree upon their neutral.  The proposal quoted the analysis by the former Co-Chairs of the New York State Bar Association’s Dispute Resolution Section’s Committee on ADR in the Court on the benefit of party-appointed mediators, which explained that historically, settlement rates from the EDNY (67%) and WDNY (72%) mediation programs, which afford the parties the initial opportunity to jointly choose their mediator, are significantly higher than in the New York County Commercial Division (34%) where mediators are selected for the parties by the ADR Coordinator.

 

The ADR Committee proposal would modify Rule 3(a) to include the following sentence: “Counsel are encouraged to work together to select a mediator that is mutually acceptable, and may wish to consult any list of approved neutrals in the county where the case is pending.”  The ADR Committee also pointed out that Nassau and Westchester County Commercial Divisions currently give parties five business days to attempt to agree on a mediator before the process of appointment reverts to the court and suggested that including such a time period in Rule 3(a) “would be optimal.”  Recognizing that there are local rules governing ADR administration, the ADR Committee further recommended that instead of proposing an immediate change to the Commercial Division Rules, OCA and the Statewide ADR Coordinator consult with the ADR Administrators in each Commercial Division location to determine whether their ADR Rules can be revised to include an initial five-day period for the parties to jointly select a mediator.

 

For those interested, the public comment period is open until August 20, 2018, and comments are to either be: emailed to rulescomments@nycourts.gov; or sent to John W. McConnel, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004.

The New York Commercial Division was founded in 1993 “to test whether it would be possible, by concentrating on commercial litigation, to improve the efficiency with which such matters were addressed by the court and, at the same time, to enhance the quality of judicial treatment of those cases.” Among other things, its continual adoption of innovative new rules and amendments to existing rules has elevated the Commercial Division to being one of the world’s most efficient venues for the resolution of commercial disputes.

In our last installment of this blog’s Check the Rules series, we looked at the Commercial Division Advisory Council’s proposed amendment to Commercial Division Rule 17 concerning length of papers, along with some recent support from Commercial Division judges, including Justice Saliann Scarpulla of the Manhattan Commercial Division, whose decisions have taken lawyers to task for being long-winded.

It turns out that Justice Scarpulla also is an advocate of the efficiency associated with pretrial evidentiary hearings and immediate trials on material issues of fact under CPLR §§ 2218, 3211 (c), and 3212 (c), which, according to the Advisory Council in a recent new-rule proposal, are “significantly underutilized” and provide “yet another tool to help efficiently dispose of commercial disputes.”

Under the Advisory Council’s proposed new Rule 9-a, which essentially reinforces a court’s existing authority under the aforementioned CPLR provisions to direct evidentiary hearings, “parties are encouraged to demonstrate on a motion to the court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material fact of the case.” The proposed rule sets forth specific examples of such motions, including dispositive motions to dismiss and for summary judgment; preliminary-injunction motions; spoliation of evidence motions; jurisdictional motions; statute of limitations motions; and class action certification motions.

The idea behind proposed new Rule 9-a is to “expedite and streamline . . . questions of improper notice or other jurisdictional defects or dispositive defenses,” so as to avoid the kind of “litigation [that] continues for years through extensive discovery and other proceedings until trial where the fact issue is finally adjudicated and the case is resolved in a way that it might have been years ago.” In short, the proposed rule “is designed to reduce the waste of time and money which such situations create.”

As noted above, based on a couple recent decisions, it would appear that Manhattan Commercial Division Justice Saliann Scarpulla is on board with proposed Rule 9-a.

In January of this year, before Rule 9-a had even been proposed, Justice Scarpulla granted summary judgment for the plaintiff on a claim for breach of contract in a case called Seiko Iron Works, Inc. v Triton Bldrs. Inc. But because she was unable to “determine the total amount of damages to which [plaintiff w]as entitled based on the papers submitted,” Justice Scarpulla exercised her discretion under CPLR 3212 (c) to direct an evidentiary hearing on the material damages issues raised by the plaintiff’s dispositive motion.

Earlier this month, Justice Scarpulla expressly cited proposed Rule 9-a in a footnote to her post-hearing decision in Overtime Partners, Inc. v 320 W. 31st Assoc., LLC, a commercial landlord-tenant action seeking injunctive relief concerning the acceptance of a proposed sublessee under a master lease. After the tenant commenced the action by order to show cause, Justice Scarpulla “ordered a factual hearing to determine whether [the landlord] unreasonably withheld and delayed consent” to the proposed sublease. Citing CPLR 3212 (c) and footnoting proposed Rule 9-a, Justice Scarpulla expressly referenced her discretion thereunder to “order an immediate trial of an issue of fact raised by a motion when appropriate for the expeditious disposition of the controversy.”

Thus, it seems proposed Rule 9-a already is alive and well in the Manhattan Commercial Division, at least in spirit.  Look for its formal adoption in the near future.

As with all new-rule or rule-change proposals, anyone interested in commenting on proposed new Rule 9-a may do so by sending or emailing their comments to John W. McConnell, Esq. (rulecomments@nycourts.gov), Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004.

Perhaps I’m revealing too much about my abilities in a prior life to balance academic and social priorities, but does anyone else remember the “not less than X pages” page requirements for high-school and college term papers and the corresponding font, margin, and line-spacing tricks for getting the assignment over the finish line?

attorney competition

Well, it would appear that lawyers – being the “remarkably insecure and competitive group of people” that they are – suffer from the opposite affliction.  According to a recent proposal from the Commercial Division Advisory Council to amend Commercial Division Rule 17 concerning length of papers, “attorneys have incentives to unfairly squeeze additional content into the allotted pages” and “have developed techniques to ‘cheat’ the limit.”

The Advisory Council’s proposal to amend Rule 17 seeks to eliminate the unfair and disingenuous “incentives” and “techniques” currently utilized by attorneys through the implementation of word rather than page limits on their submissions to the court.

The current Rule 17 provides that “(i) briefs or memoranda of law shall be limited to 25 pages each; (ii) reply memoranda shall be no more than 15 pages and . . . ; (iii) affidavits and affirmations shall be limited to 25 pages each.”

The Advisory Council’s Rule 17 proposal “substitutes word limits in place of the page limits set forth in the current rule:  7000 words (currently 25 pages) in briefs, memoranda of law, affidavits and affirmations; and 4200 words (currently 15 pages) in reply memoranda.”

I’ve seen enough decisions expressly referencing Rule 17 over the years to suggest that the Justices of the Commercial Division would support the change.  Just two months ago, in Domingo v Bidkind, LLC, Manhattan Commercial Division Justice Saliann Scarpulla admonished the defendants’ counsel for “fail[ing] to adhere to the page limits provided in Commercial Division Rule 17 in this motion and in another related action.”  Others, like former Kings County Commercial Division Justice Carolyn E. Demarest, have instituted “appropriate penalties” for Rule 17 violations – including, for example, in her Aish Hatorah NY, Inc. v Fetman decision from 2015 where she flat-out “disregarded” the latter 27 pages of a 52-page brief in support of a motion to renew and reargue.  Former Westchester County and Manhattan Commercial Division Justices Alan D. Scheinkman and Richard B. Lowe, III issued similar penalties number of years ago in Reilly Green Mountain Platform Tennis v Cortese and LaRosa v Arbusman.

According to the Advisory Council, word limits, which are more precise and uniform in application, better serve the purpose and spirit of Rule 17 – namely, to “encourage attorneys to focus on strong, concise arguments, and ensure that judges and opposing counsel are not overwhelmed with meandering, repetitious briefs.”

Word limits on papers submitted in the Commercial Division also would conform to appellate brief-writing parameters currently operative in the First and Second Departments, which require parties to certify in writing that their submissions comply with the applicable word-count requirements.

Anyone interested in commenting on the proposed amendment to Rule 17 may do so by sending or emailing their comments to John W. McConnell, Esq. (rulecomments@nycourts.gov), Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY  10004.

For the fifth installment of this blog’s ongoing “Check the Rules” series, we feature the individual practice or part rules of the Justices of the Kings County Commercial Division, particularly those recently instituted by Hon. Sylvia G. Ash.

As hyperlinked within any number of past posts on this blog, the Commercial Division’s official webpage – which encompasses all eight of its statewide locations, including the busy metro counties of New York, Queens, and Kings – provides users with county- and judge-specific practice information, including individual rules and procedures for many of its Justices. Check the Rules

Notably, however, the link to the Kings County Commercial Division, which contains separate links to bibliographical and contact information for its two Justices, Hon. Sylvia G. Ash and Hon. Lawrence Knipel, does not link to the individual rules for either Justice. Their rules can be found elsewhere on the NYCOURTS.GOV site, specifically here (Justice Knipel) and here (Justice Ash).

A couple of Justice Ash’s new rules are worth noting, particularly with respect to motion practice and pre-trial conferencing:

Motions. Justice Ash’s motion calendar, which is designated for Wednesday mornings, consists of two separate calendars – a “general motion calendar” and, to the delight of many practitioners, an “oral argument motion calendar,” which consists only of motions that have been fully briefed and submitted to the court in hard-copy format in advance of the calendar call. As a general rule, “Justice Ash will only hear arguments on motions that are on the oral argument motion calendar.” The bifurcated nature of Justice Ash’s motion calendar – particularly the oral argument motion calendar – presumably will facilitate rulings from the bench, which litigants interested in prosecuting and defending their commercial cases expeditiously no doubt will welcome.

Pre-trial Conferences. Justice Ash’s pre-trial conference calendar, which is designated for Thursday mornings, also is two-fold in nature. At the first pre-trial conference, the court will set a “firm trial date” – generally “three to five months out” – as well as a date for the second pre-trial conference. At the second pre-trial conference, parties must submit witness lists, exhibit books, motions in limine, and pre-trial memoranda, and their failure to do so “will result in an adjournment of the second pre-trial conference as well as the trial.”

Speaking of updates and resources, the webpage for New York’s electronic filing system (NYSCEF), also frequently hyperlinked on this blog, recently was updated to include the following resources:

  • Forms for general use in the Supreme Court, Appellate Division, Court of Claims, and Surrogate’s Court, and for specific use in particular counties;
  • A PDF Checker allowing practitioners to validate acceptable documents for proper e-filing on the NYSCEF system;
  • A statewide list of Authorized Courts and counties for e-filing;
  • Links to Rules and Legislation concerning e-filing, including the Electronic Filing Rules for the Appellate Division, the Uniform Rules for the Trial Courts, and related Amendments and Administrative Orders; and
  • Links to News & Events concerning new features and functions on the NYSCEF system, including production build notes for practitioners, clerks, and administrators alike.

 

In one of our very first posts on this blog – entitled “First Things First:  Check the Rules!” – we reported on some updates in March of this year to Manhattan Commercial Division Justice Eileen Bransten’s individual practice rules.  We took the opportunity then to remind Commercial Division practitioners, in light of the frequency with which Commercial Division judges update their individual rules, to make a point of regularly checking the rules of those judges to whom their cases have been assigned.

Justice Bransten rules

Case in point:  Justice Bransten recently updated her practice rules for the second time this year.

Subscribers to CourtAlert, a New York case-tracking service, may recall receiving an email alert in early November, notifying practitioners that Justice Bransten had updated her practice rules as of October 27, 2017, and recommending that practitioners working on cases assigned to Part 3 download her newly-updated rules and forward them on to all other attorneys working on such cases.  A handy comparison with Justice Bransten’s prior rules highlights the following updates:

  • Status Conference Order Form:  In addition to providing Part 3 order forms for Preliminary and Compliance Conferences, Justice Bransten’s practice rules provide a New Model Status Conference Stipulation and Order form – which, as far as we can tell, is a first-of-its-kind in the Commercial Division.  The stated purpose of the form is “to assess the progress the parties have made and to determine what items are outstanding and what needs to be done to ensure that discovery is completed and the Note of Issue is filed in a timely fashion.”

The 33-page, comprehensive order form covers the waterfront, including but not limited to prior conferences and appearances; an updated description of the surviving claims and amounts demanded; general progress reports on document discovery and depositions, including any proposed new dates for completion; specific reports on electronic discovery and privilege logs; anticipated expert discovery, if any; and a status report on any progress toward settlement, including through the use of ADR.

Apropos to a number of recent posts on this blog, Justice Bransten’s new Status Conference order form makes specific reference to, and offers detailed descriptions of, virtually all the newer Commercial Division Rules that have been rolled out in recent years.

  •  Discovery Dispute Procedure:  In accordance with Commercial Division Rules 14 and 24, Justice Bransten prefers to resolve discovery disputes “through a court conference – not through motion practice.”  Her updated rules now provide for a dispute-resolution process that, in addition to requiring the moving party to submit a pre-conference position letter, permits “[t]he non-moving party to submit a rebuttal letter no later than 3 business days after the moving letter is filed.”  In addition to being e-filed on the NYSCEF system, all pre-conference letters must be submitted in hard copy before the Court will conduct the conference.
  • Motion Exhibits:  With respect to all motion submissions, Justice Bransten’s updated rules now specify that “Plaintiff shall use lettered exhibits [and] Defendant is to use numbered exhibits.”
  • Pre-Trial Submissions:  Finally, with respect to the parties’ pre-trial submissions, particularly the identification of witnesses, Justice Bransten’s updated rules make a point of clarifying that “[t]he Court need only be advised of witnesses each party will call as part of their case-in-chief [and] reserves the right to permit rebuttal witnesses upon application from the parties.”

**Nota Bene** – Once again, we would be remiss not to mention an upcoming Commercial Division-related event, particularly one concerning rule changes, sponsored by the Commercial & Federal Litigation Section of the New York State Bar Association.  On Thursday, January 18, 2018, the NYSBA will be sponsoring a webcast CLE entitled “Amendments to the Commercial Division Rules 2018:  A Renaissance in Commercial Litigation Practice.”  The CLE will cover recent rule changes concerning, among other areas, expert disclosure, limitations on depositions, non-party electronic discovery, and privilege logs.

Disclosure of Electronically Stored Information (“ESI”) has become a staple in commercial cases.  Of course, with the vast number of documents and ESI being reviewed and the increased complexity in the review process, the risk of inadvertent production of privileged information is at its highest.  The inadvertent production of privileged material often leads to lengthy, costly litigation, the consequences of which can be disastrous to litigants. 

While the most efficacious approach for addressing privilege waiver as a result of inadvertent disclosure would be an amendment to the CPLR, there’s no telling whether the Legislature will pass such an amendment, or when.  Accordingly, the subcommittee of the Commercial Division Advisory Council (the “Subcommittee”) has proposed an “interim measure” to address these concerns.  Specifically, the Subcommittee proposed a new amendment to Commercial Division Rule 11-g (which addresses confidentiality orders in the Commercial Division) to incorporate specific “privilege claw-back” language into the confidentiality order.  Parties employing the language would agree to:

  • Implement and adhere to reasonable procedures to prevent the disclosure of privileged information;
  • Take reasonable steps to correct errors when protected information is inadvertently produced;
  • Return or destroy copies of inadvertently produced protected information upon request of the producing party;
  • Neither challenge the producing party’s document review procedure or its efforts to rectify the production error, nor claim that the return of the protected information has caused the receiving party to suffer prejudice.

This language is consistent with existing New York case law regarding inadvertent privilege waiver, which provides that the inadvertent production of documents does not constitute a waiver if: (i) the producing party had no intention of producing the document; (ii) the producing party took reasonable steps to ensure that the document was not disclosed; (iii) the producing party took prompt action to rectify the inadvertent production; and (iv) the party receiving the inadvertently produced document would not suffer prejudice by having to return the document.  See, e.g., AFA Protective Sys., Inc., v City of New York, 13 AD3d 564, 565 [2d Dept 2004].

The proposed amendment seeks to protect litigants from the inadvertent disclosure of protected information and reduce the number of disputes arising from inadvertent productions.  And, by incorporating language consistent with New York case law, the proposed amendment ensures that the parties take steps necessary under New York law to avoid an inadvertent waiver and take prompt action to rectify the inadvertent production if it occurs.

There’s a little over a month left to chime in on this important proposed amendment.  Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, New York 10004.  Comments must be received no later than January 16, 2018.

“The expert discovery rules are promulgated so no party will be ‘sandbagged’ or surprised by another expert’s opinion” – Manhattan Commercial Division Justice Eileen Bransten

Several weeks ago, we reviewed some of the newer Commercial Division Rules and reported on a couple of recent decisions from Justice Shirley Werner Korneich of the Manhattan Commercial Division applying one of those Rules, Rule 11-c, concerning nonparty electronic discovery.  We follow up this week as promised with a look at another recent new-rule application from the same court.

Earlier this year, Justice Eileen Bransten, whose similarly-insightful decisions also are regular fodder for this blog, addressed issues concerning expert disclosure under Commercial Division Rule 13(c) in Singh v PGA Tour, Inc.Sandbagger

In Singh, the plaintiff, a professional golfer and member of the defendant PGA Tour, sued the Tour alleging that he had been humiliated by an arbitrary administration of the Tour’s anti-doping program and that the Tour wrongfully withheld his prize monies.  Singh had used a product called “deer antler spray” between seasons to address knee and back problems.  Sports Illustrated later posted an article about the spray on its website, referencing Singh’s use and suggesting that he had used it in violation of the Tour’s drug policy.  Singh responded by providing the Tour with a bottle of the spray for testing.  The initial results were negative for steroids but positive for a separate prohibited substance called “IGF-1.”  The Tour suspended Singh and held his 2013 prize money in escrow.  Singh challenged the Tour’s determination in arbitration.

The World Anti-Doping Agency, from which the Tour adopted its list of prohibited substances, subsequently determined that deer-antler spray was not a prohibited substance.  As a result, the Tour dropped its disciplinary action against Singh, and the arbitration was discontinued on the eve of the hearing.  Singh then sued the Tour in the Manhattan Commercial Division.

In the course of expert discovery in the Supreme Court action, Singh submitted a second, expert “reply report,” which the Tour challenged under Commercial Division Rule 13(c) as “impermissibly including new opinions which were not included in the first report.”  Specifically, Singh’s expert reply contained certain newly-obtained “consumer data” leading Singh to conclude that the “Tour suspension reduced the favorable criteria that marketing executives would use in their decision-making process in evaluating Singh’s viability as a spokesperson/endorser/advocate.”

Rule 13(c) mandates that an expert report contain, among other things, “a complete statement of all opinions the witness will express and the basis and the reasons for them,” as well as “the data or other information considered by the witness in forming the opinion(s).”  Quoting from The Chief Judge’s Task Force on Commercial Litigation in the 21st Century, Justice Bransten noted in her decision that “this rule was promulgated in an effort to harmonize the disclosure rules of our state and federal courts,” and that the Commercial Division looks to the Federal Rules of Civil Procedure “for guidance on expert disclosure issues.”  Federal Rule 26(a)(2)(B) mandates that an expert report contain the same statement, data, and information cited above, and Federal Rule 37(c)(1) provides that if a party fails to do so, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial.”

Justice Bransten granted the Tour’s motion to strike Singh’s expert reply, finding that “the new analysis, information, opinion and data contained within Plaintiff’s Reply Expert Report violates Commercial Division Rule 13(c) and FRCP 26.”  Noting the “egregiousness of the belated disclosure,” Justice Bransten cautioned Commercial Division practitioners that Rule 13(c) does not provide for “an opportunity for a party to ‘correct’ the deficiencies and omissions made in an initial expert report — including addition of new data and opinions, particularly when that data was available to the expert at the time the initial report was issued” or for an expert “to say what he neglected to say in his opening report.”

The rules of golf prohibit a player from “sandbagging” or deceiving others about their knowledge, intentions, and abilities.  As Justice Bransten’s recent decision in Singh v PGA Tour, Inc. makes clear, the same goes for the Commercial Division Rules regarding expert disclosure.

**Nota Bene** – Readers interested in hearing from Commercial Division Justices directly on lessons to be drawn from the implementation of some of these new rules and rule-changes should register for the upcoming Bench & Bar Forum sponsored by the NYSBA Commercial & Federal Litigation Section.  The program, entitled “True Innovation and Efficiency: New York County Commercial Division Justices Discuss the Success of the New Commercial Division Rules,” is scheduled for the evening of November 27th at Foley & Lardner LLP.