New Commercial Division Rules in New York State Supreme Court | Practical Law

New Commercial Division Rules in New York State Supreme Court | Practical Law

Effective June 2, 2014, the Commercial Division of the New York State Supreme Court will have new rules pertaining to accelerated adjudication and interrogatories.  The court also adopted a new form preliminary conference order.

New Commercial Division Rules in New York State Supreme Court

Practical Law Legal Update 7-568-4465 (Approx. 4 pages)

New Commercial Division Rules in New York State Supreme Court

by Practical Law Litigation
Law stated as of 27 May 2014 • New York
Effective June 2, 2014, the Commercial Division of the New York State Supreme Court will have new rules pertaining to accelerated adjudication and interrogatories. The court also adopted a new form preliminary conference order.
In an ongoing effort to make practice in the New York Commercial Division more efficient, the Chief Administrative Judge adopted new rules for the Commercial Division (located in 22 NYCRR § 202.70(g)) effective June 2, 2014, pertaining to:
  • Accelerated adjudication.
  • Interrogatories.
The court also adopted a model form for preliminary conference orders.

Accelerated Adjudication

New Commercial Division Rule 9 allows parties to consent to accelerated adjudication procedures so that their dispute is ready for trial within nine months. The consent must be in writing and can be included in the parties' contract. The accelerated procedures are similar to some aspects of arbitration (for example, there is limited discovery and no interlocutory appeals) but preserve a party's right to a meaningful appeal after trial.
If the parties consent, they "irrevocably" waive the right to:
  • Object based on:
    • lack of personal jurisdiction; and
    • forum non conveniens.
  • A jury trial.
  • Recover punitive or exemplary damages.
  • Take interlocutory appeals.
Unless the parties agree otherwise, they also waive their rights to full discovery. Instead, discovery is limited to:
  • Seven interrogatories.
  • Five requests to admit.
  • Seven depositions per side, no longer than seven hours each.
  • Documents relevant to a claim or defense, restricted by time frame, subject matter and person or entity to which the request pertains.
Similarly, unless the parties agree otherwise, discovery of electronically stored information (ESI) is also controlled, and must:
  • Be produced in a searchable format usable by the party receiving the information.
  • Use narrowly tailored descriptions of the custodians from whom the ESI is sought.
  • Be proportionate to the nature of the dispute or amount in controversy, otherwise the requesting party may need to advance the cost of production pending final judgment.
Time will tell whether a relatively quick time to trial is more important to litigants than full discovery, jury trials and interlocutory appeals, all of which are firmly entrenched in New York practice.

Interrogatories

New Commercial Division Rule 11-a sets a limit of 25 initial interrogatories and also limits the scope to:
  • Names of witnesses with knowledge of the action.
  • The computation of damages.
  • The existence, custodian, location and general description of relevant documents and other physical evidence.
Additional interrogatories can be served by agreement or by court order. Parties must serve any contention interrogatories at the conclusion of other discovery and at least 30 days before the discovery deadline.

Form Preliminary Conference Order

The Chief Administrative Judge of the Courts prescribed an optional model form for Preliminary Conference Orders for the Commercial Division. The model order includes provisions for:
  • Confidentiality orders.
  • Discovery, including:
    • document production;
    • interrogatories;
    • depositions;
    • electronic discovery; and
    • expert discovery.
  • Impleader.
  • Alternative dispute resolution.
  • Dispositive motions.
  • Compliance conferences.

Confidentiality Orders

Under the model order, parties are directed to use either the model confidentiality agreement specified by the assigned justice or the one drafted by the New York City Bar Association, which is available on its website. If using another form, the parties must provide the court with a draft of the agreement reflecting the changes from the model agreements.

Electronic Discovery

The parties must state whether there will be electronic discovery in the case. If so, the parties must indicate whether:
  • There is a plan for preservation of ESI.
  • They have identified the custodians of the ESI.
  • They have designated the person responsible for preserving the ESI.
The parties must also agree on the scope and method of searching for ESI. The order provides that each party shall bear its own expenses.

Expert Discovery

The provisions for expert discovery are notable because the parties must:
  • Confer on a schedule for expert disclosure no later than 30 days before the completion of fact discovery, including:
    • identification of experts;
    • exchange of expert reports; and
    • the timetable for expert depositions.
  • Complete expert discovery no later than four months after fact discovery is complete.
For more information on practicing in New York's Commercial Division, see Practice Note, Practicing in the Commercial Division of the New York State Supreme Court.