In recognition of the increasing use of electronic discovery in the Commercial Division, an advisory council has proposed the adoption of a uniform preliminary conference form that includes new detailed sections to provide the court with more information on the structure of discovery in a case.
Touted as “the first complete revision of the PC form in recent history,” the proposed form was crafted by a subcommittee of the Commercial Division Advisory Council tasked with creating standardized forms and procedures to aid in judicial case management.
“Some judges use a standardized form, others do not. It was a mishmash. This would be a proposed uniform form. It will have everything you need in terms of efficiency,” said Manhattan Supreme Court Justice Eileen Bransten, who serves as cochair of the subcommittee along with Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison.
Lengthier and more detailed than standardized preliminary conference forms adopted by some Commercial Division judges, the proposal–which the Office of Court Administration has made open for public comment through Feb. 3, 2014—includes the following changes: a header and footer on each page; more detailed section to list the appearances of parties; a new section for confidentiality forms; room for expanded case description; more thorough sections for e-discovery and expert discovery; and additional language “to better express what must be accomplished to complete discovery.”
The proposal can be viewed here.
Also notable about the form is that upon signing by the judge, it will be uploaded into the e-filing courts system.
In an interview with CLI, Bransten said there was a need for a more-detailed PC form in light of the expected quantity of discovery, particularly in electronic form, in any given Commercial Division case.
“Discovery is not an easy thing; it’s expensive and time-consuming but determines the whole nature of the case. If you don’t have a good PC order and start off right, you won’t have an end product (as in trial or settlement) that’s any good,” the judge said. “Each one of the items that lead to conclusion are all very important but this is the bedrock upon which you’re going to do your discovery.”
Creating a standardized preliminary conference form was among the list of procedural reforms recommended by the “Chief Judge’s Task Force on Commercial Litigation in the 21st Century.” The June 2012 report specifically cited the need for parties to be able to “address e-discovery issues at the outset of the litigation.”
“The Commercial Division Advisory Council recognizes that standard forms can promote efficiency. We believe that this new Preliminary Conference form will save parties, and the court, many hours of effort but will not limit their flexibility to respond to the needs of a particular case,” said Robert Haig, council chair and a partner at Kelley, Drye & Warren.
Parties familiar with the pilot e-discovery form required by Commercial Division Justice Jeffrey Oing will recognize similar categories in the proposed form. For instance, it asks parties to certify that they have “met and conferred” over matters relating to e-discovery; asks parties to identify relevant custodians for the preservation of e-discovery and to include information about production and identification of e-data as well as claw-back provisions.
Significantly, the proposed form also requires each party to bear its own costs of e-discovery pursuant to U.S. Bank Nat’l. Association v. Greenpoint Mtge. Funding, 94 A.D.3d 58 (1st Dep’t 2012). In the event of any cost-shifting issues, parties will be required to write a letter to the court under three pages outlining the problem.
Litigators welcome the idea of a more detailed, standardized preliminary conference order.
“Uniformity is good because it reflects collected wisdom in one form, so it doesn’t depend on the spin of the wheel,” said Jonathan Lupkin of Rakower Lupkin, who’s a member of the advisory council. “Practitioners can have some predictability as to what will be expected of them at preliminary conferences instead of having to hunt and peck around in terms of one judge’s proclivities.”
Bransten declined to comment on any other forthcoming proposals from the council’s best practices subcommittee.
Those wishing to make a public comment on the proposed order can email submissions to CommDivPCForm@nycourts.gov or write to John W. McConnell, Counsel, Office of Court Administration, 25 Beaver St., 11th Floor, New York, NY, 10004.