Discovery

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In a recent decision, the New York County Commercial Division reaffirmed the high bar that parties must meet when attempting to seal court documents in business disputes. In Linkable Networks, Inc. v. Mastercard Inc., the court ruled that Mastercard, despite having the consent of the plaintiff, was not entitled to an order sealing documents referenced in prior motion practice and produced in discovery. This ruling is another reminder of the high bar courts have set to seal documents, as discussed by my colleague Serene Carino in her blog post “Signed, Seal, Delivered.” It also highlights the balance courts strike between protecting sensitive business information and upholding the public’s right to access judicial records.

Under Section 216.1(a) of the Uniform Rules for Trial Courts, a court may seal or redact court records only upon a written finding of “good cause.” The rule stipulates that such an order must specify the grounds for sealing and take into account both the interests of the parties involved and the public’s right to transparency. In the business context, courts are more willing to seal records when trade secrets or competitive advantages are at risk.Continue Reading Commercial Division Clarifies Standards for Sealing Court Records in Business Disputes

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Under CPLR §§ 3111 and 3122(d), “[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.” The Commercial Division Rules at Appendix A (“Guidelines for the Discovery of ESI”) define “reasonable production expenses” to include:

Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs
  1. Reasonable fees charged by outside counsel and e-discovery consultants;
  2. Reasonable costs incurred in connection with the identification, preservation, collection, processing, hosting, use of advanced analytical software applications and other technologies, review for relevance and privilege, preparation of a privilege log (to the extent one is requested), and production;
  3. Reasonable costs associated with disruption to the non-party’s normal business operations, provided such costs are quantifiable and warranted by the facts and circumstances; and
  4. Other costs reasonably identified by the non-party.
Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs
Quick stop on a roadtrip
Tom Strecker, Unsplash

Every commercial litigator is familiar with the burdens at the discovery phase of litigation, whether it is a dispute over production, privilege, or just the sheer volume and cost (both time and money) associated. Be that as it may, discovery also serves a critical and necessary purpose in commercial litigation. Determining what to ask for and how to get it is an art, and a skilled litigator’s strategy for doing so can shape the conduct of litigation. 

Commercial litigators often are faced with interstate discovery. When so confronted, litigators will dust off each adopting state’s version of the Uniform Interstate Depositions and Discovery Act and employ the simple procedures applicable to those interstate courts to have deposition and discovery subpoenas issued to the out-of-state non-party.  

But what happens when the discovery sought is outside the territorial jurisdiction of the United States? The Commercial Division, as provided in South32 Chile Copper Holdings Pty Ltd. v Sumitomo Metal Mining Co., Ltd., et al., presided over by the Honorable Robert R. Reed of the New York State Supreme Court, New York County, Commercial Division have those instances covered via the Hauge Convention of 1970 on the Taking of Evidence Abroad in Civil Matters (the “Convention”).Continue Reading Think Outside the Jurisdiction: International Discovery is Obtainable with the Assistance of the Commercial Division

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As readers of this blog are aware, the most contentious battles during a lawsuit are fought during discovery. Among the various discovery battles is scheduling depositions. In many cases, parties tend to reschedule depositions, which typically drags out the length of a litigation. The worst decision a party can make is failing to appear for a deposition. As a recent decision from Manhattan Commercial Division Justice Margaret Chan shows, New York courts will dispose of a case (i.e., striking of a pleading) for a party’s repeated failure to appear for a scheduled deposition.

In O’Rourke v Hammerstein Ballroom,  Defendants moved separately, pursuant to CPLR §§ 3124 and 3126, requesting several forms of discovery sanctions against Plaintiff, including (i) dismissal and/or striking of the complaint; (ii) precluding Plaintiff from offering testimony or evidence in support of his claims; and (iii) monetary sanctions, for Plaintiff’s repeated failure to appear at court-ordered depositions. Specifically, between November 19, 2021, to January 24, 2024, the Court held eight discovery conferences with the parties and scheduled Plaintiff’s deposition each time. However, Plaintiff failed to appear for each of his eight separate court-ordered depositions.Continue Reading A Deposition Wake Up Call: Commercial Division Strikes Pleading for Repeated Failure to Appear for a Deposition

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)…

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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

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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…

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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…