This month, the Office of Court Administration publicized three proposed changes to the NY Commercial Division Rules that received slightly less attention than the publication of the infamous Donald Trump/Billy Bush videotape and more ‘Wikileaked’ Hillary Clinton campaign emails. As with the changes we’ve discussed in previous posts, these proposed rules are designed to enhance efficiency, decrease costs, and promote the Commercial Division as a hospitable forum for commercial litigants. The three new proposals are discussed below.
As outlined in previous posts, the New York Commercial Division seeks to be a forward-thinking forum that adopts rule changes aimed at increasing efficiency and decreasing litigant costs. In August, a revised Model Preliminary Conference Order form was adopted for optional use by Division judges, even though the previous Preliminary Conference Order form had been approved only two years ago. The need for a revised form highlights the rapid changes in Commercial Division rules and the Division’s continuous efforts to stay up to date. The new form incorporates specific descriptions of many of the recently adopted rules and contains significant revisions to the sections governing pre-answer motion practice, document production, interrogatories, depositions, disclosure disputes, and e-discovery. This post discusses four of the more significant rule changes that are reflected in the new form.
The New York Supreme Court’s Commercial Division Advisory Council has recommended a rule that it believes would substantially expedite non-jury trials and facilitate cross examination with no adverse effects. According to the Council “such a rule would highlight the availability of a practice … that has been found by some judges and attorneys to streamline trials and facilitate crisper cross-examination of witnesses.” The proposed rule would allow courts to require direct testimony in affidavit form of a party’s own witness in a non-jury trial or evidentiary hearing. The proposed rule reads as follows:
The New York Supreme Court’s Commercial Division has developed a reputation as a forward-thinking forum at the state level for the resolution of complex business disputes. When possible, the Commercial Division promulgates rule changes to increase efficiency and lower litigant costs.
This post discusses two proposed changes to the Commercial Division Rules that were recently open to public comment: 1) an amendment concerning memorialization of rulings in disclosure conferences; and 2) an amendment regarding settlement conferences before a justice other than the justice assigned to hear the case.