New York Supreme Court Commercial Division Rules: Navigating Recent Alterations
The Commercial Division of New York's Supreme Court aims to provide businesses with an efficient, effective and just forum for resolving complicated business conflicts. To do this, the Commercial Division Rules are continuously being examined and evaluated, so that they may reflect the demands of commercial litigation in the modern-day context.
In this LIVE Webcast, the speakers will discuss:
- The Key Amendments to the Rules:
- Enhanced Expert Disclosure
- Presumptive Numerical and Durational Limits on Interrogatories and Depositions
- Increased Specificity When Responding to Document Demands
- Categorical Privilege Logs
- Other Important Changes
- How These Changes Will Affect Your Practice
- Best Compliance Practices
Rebecca C. Smithwick, Attorney
Lupkin & Associates PLLC
Background/Scope of Rule Changes
- February 2012 – “State of the Judiciary 2012” speech by Chief Judge Lippman. Announced the creation of the Task Force.
- June 2012 – Task Force issued its Report and Recommendation.
- February 2013 – Chief Judge Lippman established Commercial Division Advisory Council.
- February 2013-June 2017 – 31 substantive changes to the CD Rules. Another 5 currently under consideration.
- Common thread – facilitate the cost-effective resolution of disputes / streamline and modernize the discovery process.
- May 2014 – PC Order approved for optional use in the CD. First complete revision of the PC form in recent history.
- Quickly became outdated due to flurry of rule changes.
- New Revised Model PC Order took effect on August 1, 2016.
- Useful guide. Informs the bench and the bar of all the new discovery rules that impact practice in the CD.
- Effective April 1, 2015, Model Compliance Conference order implemented. Very detailed.
- Revised Model Compliance Conference Order proposed March 30, 2017.
- Effective July 1, 2017, rule clarify that normally, before seeking a TRO, the opposing party must be given notice and copy of the motion papers.
- Proposed case management rules:
- Hyperlinking in briefs.
- Large Complex Case List: separate procedures for complex, high-stakes matters with at least $50 million at issue.
- Rules clarifying the process for sealing court records in Commercial Division cases.
Responding to Document Demands
- New rule effectuates three major changes: (1) it requires parties to provide increased specificity when responding and objecting to document requests; (2) it sets a deadline by which the responding party must have completed its document production; and (3) it requires a responding party to state, with respect to each individual document request, either that the production of documents is complete, or that there are no responsive documents.
- Practitioners must reexamine their inventory of templates.
Jonathan D. Lupkin, Founding Member
Lupkin & Associates PLLC
- New rule creates a preference for the use of categorical designations.
- Responsible attorney must sign a certification with facts supporting the privileged status of the information included within a category.
- Party who unreasonably insists that the producing party prepare a traditional document-by-document log risks having the costs of that preparation—including attorneys’ fees—shifted to it.
- Expected to streamline the privilege log process / result in cost savings to the parties.
Interrogatories / Depositions
- Interrogatories: The presumptive limit is set at 25. Apart from contention interrogatories, the scope of inquiry is limited to: (i) the names of witnesses with knowledge of information relevant to the case, (ii) the computation of damages, and (iii) the existence, location, and general description of relevant documents.
- Depositions: Presumptively limited to: ten (10) examinations per side and seven (7) hours per examination unless the parties agree to modifications or a party demonstrates good cause to vary the presumptions.
- Entity Depositions: a deposition notice/subpoena issued to an entity may include a list of matters on which the entity will be questioned. If it includes a list, but does not identify a specific individual, then the entity must designate the individual(s) within 10 days. If it includes a list and does identify a specific individual, then then entity may either produce the specified individual or counter-designate within 10 days.
John Lundin, Partner
Schlam Stone & Dolan LLP
- Expert disclosure in the Commercial Division is modeled after practice in the federal courts.
- Effective March 17, 2017, clarifying the court’s power to require parties to meet and confer to determine whether there are aspects of expert testimony on which the parties can agree.
- Commercial Division has long stressed ADR; New York County has a large, formal mediation program
- Effective July 1, 2016, new rule providing settlement conferences before a Commercial Division justice other than the one to which the action is assigned.
- Effective April 1, 2017, model forum selection clause for assignment to the Commercial Division.
- Proposed rule requiring counsel to certify that they have discussed ADR alternatives with clients
- Several new or proposed rules designed to streamline trials
- New rule regarding summary trial approved December 1, 2015. Not often used.
- Effective July 1, 2017, new rule clarifying court’s power to limit the number of trial hours.
- Effective October 17, 2016, new rule clarifying court’s power to take direct evidence in non-jury trials by affidavit.
Who Should Attend:
- Attorneys Practicing Commercial Law
- Commercial Litigators
- In-house Counsel
- New York Public and Private Companies
- Other Interested Individuals
Jonathan D. Lupkin is a litigator and trial lawyer with over two decades of experience; he has been named by SuperLawyers® as one of the “Top 100” attorneys in the New York Metropolitan area for three years in a row. He has tried complex jury and non-jury cases in state and federal court and has experience in various forms of alternate dispute resolution procedures. A leader of the organized bar in New York, Mr. Lupkin has served as Chair of the Commercial and Federal Litigation Section of the New York State Bar Association, a position held by two federal judges, the general counsel of a major New York City performing arts institution and senior partners at some of the nation's largest law firms. Most recently, New York State Chief Judge Jonathan Lippman appointed Mr. Lupkin to the Commercial Division Advisory Council, a permanent body created by the Chief Judge to advise him on all matters, statewide, involving and surrounding the Commercial Division. Mr. Lupkin also serves as a member of the Advisory Committee for the Commercial Division of the Supreme Court of the State of New York in New York County.
Jonathan D. Lupkin is a litigator and trial lawyer with over two decades of experience; he has been named by …
John M. Lundin is a partner at Schlam Stone & Dolan LLP, where his practice focuses on the litigation of complex commercial disputes. Mr. Lundin represents clients in state and federal courts and arbitral tribunals throughout the United States. However, the focus of his practice is representing clients in the Commercial Division of the New York State Courts. He is a mediator for the Commercial Division’s Alternative Dispute Resolution Program. He is the principal editor and author of Schlam Stone & Dolan’s Commercial Division Blog, where he blogs on current developments in New York commercial law and litigation. Mr. Lundin received his J.D. from Columbia University Law School in 1997. From 1997 to 1998, Mr. Lundin clerked for the Honorable John T. Noonan, Jr., of the United States Court of Appeals for the Ninth Circuit. From 1998 to 2002, he was associated with Cravath, Swaine & Moore.
John M. Lundin is a partner at Schlam Stone & Dolan LLP, where his practice focuses on the litigation of …
Ms. Smithwick is a tenacious and determined lawyer who hails from Melbourne, Australia. She currently practices as a senior associate at Lupkin & Associates PLLC. In 2015 and 2016, the “Super Lawyers” rating service recognized Ms. Smithwick as a “Rising Star” in the New York Metropolitan area for her work as a business litigator. Much of Rebecca’s practice is in New York’s Commercial Division, and she has fast become a recognized authority on New York’s idiosyncratic rules of procedure. She has published five well-received articles addressing the recent amendments to the Commercial Division Rules, and has recently presented in two CLEs on the topic, one of which was at the behest of the Office of Court Administration, whose CLE programming is accessed by judges and chambers staff.
Ms. Smithwick is a tenacious and determined lawyer who hails from Melbourne, Australia. She currently practices as a senior associate …
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About Lupkin & Associates PLLC
Lupkin & Associates PLLC is a high-end New York commercial litigation boutique. It provides clients with a formidable combination of legal skill and acumen, sound litigation judgment and personalized attention. Staffed by seasoned attorneys, all of whom have “big firm” litigation experience, its particular focus is on litigating complex commercial disputes in the Commercial Division of the New York State Supreme Court and the federal courts venued in New York City.
About Schlam Stone & Dolan LLP
Schlam Stone & Dolan LLP is a preeminent boutique law firm located in Manhattan’s financial district. Its attorneys are seasoned litigators, transactional lawyers, and counsellors who have honed their skills at New York’s elite big firms and in public service, including many who have held leadership positions at U.S. Attorneys’ and District Attorneys’ offices. Representing its clients in major litigations is the bread and butter of Schlam Stone & Dolan’s civil litigation practice. These cases often involve hotly-contested fights to control or dissolve companies, protecting clients' valuable intellectual property or contractual rights, or disputes over valuable real estate. The firm litigates across the country, but its focus is on litigation and appeals in the state and federal courts located in New York City. The firm also performs internal investigations for clients, and represents clients in governmental investigations and criminal trials and appeals, including criminal tax matters. The firm’s corporate counseling and transactional practice complements its litigation and government investigations practices.