One aspect of litigation practice that sets the New York Commercial Division apart from the federal courts and the majority of other states is the right to conduct as many depositions for however long a party so chooses—but that could soon change.
This “unfettered entitlement,” as the Commercial Division Advisory Council phrases it in a recently released memorandum—one which is “bounded only by the court’s power, either sua sponte or on motion, to issue a protective order”—can lead to undue delay and expense.
In efforts to reduce this burden on parties and their clients, the task force in charge of devising procedural reforms to the state’s top forum for complex business disputes is recommending new presumptive limits on depositions.
The proposed new rule, currently out for public comment through August 19, is identical to Federal Rules of Civil Procedure 30(a)(2)(A)(i) and FRCP 30(d)(1), respectively: A limit of 10 depositions per side with a durational limit of seven hours.
“This rule presents a sea change in New York practice,” said council member Jonathan Lupkin of Rakower Lupkin, who drafted the language. “[Currently], there are no limits on the number of depositions one can take in state court. There are no presumptive boundaries. In New York, there is an extremely broad view taken in what parties can discover, and this includes depositions.”
It’s hard to say what is typical in the Commercial Division today in terms of number of depositions taken and average length of each session since each case is different.
But Lupkin’s own experience illustrates a limitless process: He once had a client deposed over the course of five days; he once took two weeks to depose a witness; and in a 2003 legal malpractice case he helped defend, it took four years to depose some 30 witnesses, not all of whom were domestically based.
A big impetus for the rule grew out of concerns from in-house counsel who see the limitless New York court practice on depositions as too costly, Lupkin said.
“The view of in-house counsel is they want to stem the hemorrhaging of legal fees,” he said. “This is one of the ways in which this will happen.”
Important to note about the proposed rule, he added, is its built-in flexibility: It can be altered should parties agree at the outset or obtain a court order upon a showing of good cause.
For instance, there may be a need to increase the limits when an interpreter is required, or when a deponent is recalcitrant or his lawyer uncooperative. Some litigation may involve more complex issues that require longer depositions or the examination may reveal the existence of critical documents not yet requested.
New York is not alone in pushing for limits modeled after the federal rules. There are 22 states that currently impose such restrictions in their courts; specifically, the 10 numerical and seven-hour durational cap is used in the District of Columbia, Hawaii, Montana, Utah and Wyoming, according to the advisory council.
Indeed, the Federal Rules of Civil Procedure, which adopted the 10-deposition limit in 1993 and the durational limit in 2000, may see a further reduction in the presumptive number of depositions—from 10 to five, although for the Commercial Division to steer in that direction would be “too much, too fast,” Lupkin said.
Since mid-2013, the advisory council, which is chaired by Robert Haig, a partner at Kelley Drye & Warren, has been submitting numerous proposals to improve the efficiency of the Commercial Division and help raise its profile among litigants, both here and abroad.
Some of these proposals are already in place, such as a rule that provides for accelerated adjudication procedures, while others are awaiting formal adoption by the Office of Court Administration, such as using retired practitioners as special masters to handle discovery matters or a proposed pilot program diverting one in every five assigned cases to mediation.
The council has been working off a blueprint—a 2012 report chaired by a separate task force convened by Chief Judge Jonathan Lippman that drafted the broad contours of these changes.
This most recent proposal on presumptive discovery limits should not deliver a huge jolt to those familiar with federal court procedures, Lupkin noted.
“If you spend most of your time in federal court, this will not be a particularly tremendous change,” he said. “If you’re used to practicing in the Commercial Division, it’s going to be a big change.”
The comment period is open through August 19. Comments should be sent to firstname.lastname@example.org or sent to John W. Mcconnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004.