In Response to Chief Judge's Initiative, More Change Is on the Way for Practice in the Commercial Divisions of the NY State Courts

In 2012, Jonathan Lippman, the Chief Judge of the New York Court of Appeals, created of a task force on Commercial Litigation in the 21st Century. The purpose of the task force was “to provide practical proposals that will have a positive and lasting impact on commercial litigation in New York,” enhancing the performace on the Commercial Division of the New York state courts. Since its founding in 1995, the rules of practice of the Commercial Division have evolved and improved. Now, as a result of the Chief Judge’s task force, the pace of change has increased.

In the past two weeks, the New York Office of Court Administration has presented five Commercial Division rule changes for public comment. They are:

A proposed amendment to Commercial Division Rule 8(a) to add the voluntary and informal exchange of information to help aid early settlement as an additional topic on which parties must consult prior to a preliminary conference.

Proposed Guidelines for Discovery of . . . ESI from Nonparties

A proposed new rule regarding the procedure for assigning cases to the Commercial Division under which:

any party would be able to seek assignment of a case to the Commercial Division by filing, within 90 days of service of the complaint, a Commercial Division RJI certifying that the case meets the requisite jurisdictional requirements. Failure to file an RJI within 90 days would preclude the party from later seeking transfer of the case to the Commercial Division, except by written application to the Administrative Judge for “good cause shown.” If an RJI is filed within 90 days without seeking assignment to the Commercial Division, any other party would have ten days to apply to the Administrative Judge for a transfer of the case to the Commercial Division. In addition, a non-Commercial Division Justice may request transfer of a case to the Commercial Division where jurisdictional requirements are met.

A proposed new rule establishing:

a “preference” in the Commercial Division for the use of “categorical designations” rather than document-by-document logging. The parties would be expected to address privilege log issues as part of the meet and confer process, “and to agree, where possible, to employ a categorical approach to privilege designations.” If a party objects to the categorical approach and insists on a document-by-document log, the producing party, “upon a showing of good cause, may apply to the court for the allocation of costs, including attorney’s fees incurred.” To ensure that a party receiving a categorical privilege log receives comprehensible information, a responsible attorney for the producing party would be required to submit a certification under 22 NYCRR § 130-1.I-a setting forth specific facts supporting the privileged status of the materials in each category. The proposal also would treat uninterrupted email chains as a single document.

A proposed new rule would require Commercial Division justices to schedule oral argument on a motion for its own “time slot,” changing the practice of some justices of scheduling multiple arguments at the same time.

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