We previously covered a proposed amendment to the New York Commercial Division Rule 20 that aimed to require moving parties seeking a temporary restraining order (“TRO”) to, absent significant prejudice, provide opposing parties with copies of all supporting papers as well as notice before any TRO could be issued.
On March 27, 2017, the Commercial Division of the New York Supreme Courts updated its rule on trial length, giving judges the express authorization to impose time limits, at their discretion, on different phases of trial. The goal of this amendment, first proposed by the Commercial Division Advisory Council in October 2016, is simple: to promote shorter, more efficient trials.
Currently, the New York Civil Practice Law and Rules permit temporary restraining orders (“TROs”) to be issued without notice to the opposing party – though this practice is discouraged by most judges. CPLR § 6313(a). Notice is not required if the moving party can demonstrate that there will be significant prejudice by reason of giving the notice. Commercial Division Rule 20. When notice is required, however, there is no requirement that the movant attach the underlying papers describing the ground for issuing a TRO.
In late 2016, the Commercial Division Advisory Council proffered a proposed rule, Proposed Rule 11-h, which would amend Rule 216.1(a) of the Uniform Rules for Trial Courts in New York to define the “good cause” under which court records could be sealed. “Good cause” to seal court records, as defined by the proposed rule, “may include the protection of proprietary or commercially sensitive information, including without limitation, (i) trade secrets, (ii) current or future business strategies, or (iii) other information that, if disclosed, is likely to cause economic injury or would otherwise be detrimental to the business of a party or third-party.” The Advisory Council has explained that the revised rule is designed to “clarify and highlight” that “the protection of proprietary sensitive business information in commercial disputes is an appropriate goal of, and ‘good cause’ for, sealing of selected documents or portions of documents filed in the course of litigation.” This is in keeping with a principal goal of the Advisory Council: to further enhance the reputation of the Commercial Division as a business friendly court.
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.
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: