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New York Supreme Court, Commercial Division, at 60 Centre Street

The rules of the Commercial Division of New York’s Supreme Court have evolved over time to look more and more like those of federal court. As a result, practice in the Commercial Division often differs quite significantly from elsewhere in the state court system. One of these differences involves rules for expert disclosure, which are now arguably just as robust in the Commercial Division as in federal court. This, however, may have opened up a trap for the unwary: “Expert” disclosures may be required with respect to witnesses who appear to be fact witnesses if their testimony is based in part on some kind of expert knowledge. One federal judge has aptly referred to this as “embedded expert testimony.” See U.S. v. Orr, 692 F.3d 1079, 1102 (10th Cir. 2012) (Holloway, J. dissenting in part). And here lies the trap: In federal court, failure to properly disclose such testimony can lead to preclusion. See, e.g., Point 4 Data v. Tri State Surgical Supply Equip’t Ltd., 2013 WL 5502852 (E.D.N.Y. Oct. 1, 2013) (precluding testimony of party witnesses concerning industry norms and technical aspects of certain software, on the ground that it was not properly disclosed as expert testimony).

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