UR 202 Commercial Division Volume 2 Flashcards
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 9-a. Immediate Trial or Pre-Trial Evidentiary Hearing.
Parties are encouraged to demonstrate on a motion to the court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material part of the case.
Motions where a hearing or trial on a material factual issue may be particularly useful in disposition of a material part of a case, include, but are not limited to:
(a) Dispositive motions to dismiss or motions for summary judgment;
(b) Preliminary injunction motions, including but not limited to those instances where the parties are willing to consent to the hearing being on the merits;
(c) Spoliation of evidence motions where the issue of spoliation impacts the ultimate outcome of the action;
(d) Jurisdictional motions where issues, including application of long arm jurisdiction, may be dispositive;
(e) Statute of limitations motions; and
(f) Class action certification motions.
In advance of an immediate trial or evidentiary hearing, the parties may request, if necessary, that the court direct limited expedited discovery targeting the factual issue to be tried.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 9-a. Immediate Trial or Pre-Trial Evidentiary Hearing.
Parties are encouraged to demonstrate on a motion to the court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material part of the case.
Motions where a hearing or trial on a material factual issue may be particularly useful in disposition of a material part of a case, include, but are not limited to:
(a) Dispositive motions to dismiss or motions for summary judgment;
(b) Preliminary injunction motions, including but not limited to those instances where the parties are willing to consent to the hearing being on the merits;
(c) Spoliation of evidence motions where the issue of spoliation impacts the ultimate outcome of the action;
(d) Jurisdictional motions where issues, including application of long arm jurisdiction, may be dispositive;
(e) Statute of limitations motions; and
(f) Class action certification motions.
In advance of an immediate trial or evidentiary hearing, the parties may request, if necessary, that the court direct limited expedited discovery targeting the factual issue to be tried.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 10. Submission of Information; Certification Relating to Alternative Dispute Resolution
At the preliminary conference, counsel must provide the court with basic case information, a statement about potential motions, copies of prior decisions, and an ADR certification form.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 10. Submission of Information; Certification Relating to Alternative Dispute Resolution
At the preliminary conference, counsel must provide the court with basic case information, a statement about potential motions, copies of prior decisions, and an ADR certification form.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Preamble to Rule 11.
The Commercial Division strives to streamline the discovery process by encouraging counsel to make discovery requests that are proportional and reasonable to the case’s complexity and proof requirements.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Preamble to Rule 11.
The Commercial Division strives to streamline the discovery process by encouraging counsel to make discovery requests that are proportional and reasonable to the case’s complexity and proof requirements.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11. Discovery.
The court may require parties to produce documents outlining the issues and elements of causes of action in the case prior to the preliminary conference.
(b) The court may further direct, if a defendant filed a motion to dismiss and the court dismissed some but not all of the causes of action, plaintiff and counterclaim plaintiff to revisit the documents to again state, clearly and concisely, the issues remaining in the case, the elements of each cause of action and the facts needed to establish their case.
(d) The preliminary conference order result in an order outlining specific provisions for early disposition of the case, such as ADR mediation, limited-issue discovery, or dispositive motions, disclosure schedule, including dates for the service of third-party pleadings, discovery, motion practice, a compliance conference, if needed, a date for filing the note of issue, a date for a pre-trial conference and a trial date as well as limitations of interrogatories and other discovery as may be necessary
(g) The court will determine, upon application of counsel, whether discovery will be stayed, pending the determination of any dispositive motion.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11. Discovery.
The court may require parties to produce documents outlining the issues and elements of causes of action in the case prior to the preliminary conference.
(b) The court may further direct, if a defendant filed a motion to dismiss and the court dismissed some but not all of the causes of action, plaintiff and counterclaim plaintiff to revisit the documents to again state, clearly and concisely, the issues remaining in the case, the elements of each cause of action and the facts needed to establish their case.
(d) The preliminary conference order result in an order outlining specific provisions for early disposition of the case, such as ADR mediation, limited-issue discovery, or dispositive motions, disclosure schedule, including dates for the service of third-party pleadings, discovery, motion practice, a compliance conference, if needed, a date for filing the note of issue, a date for a pre-trial conference and a trial date as well as limitations of interrogatories and other discovery as may be necessary
(g) The court will determine, upon application of counsel, whether discovery will be stayed, pending the determination of any dispositive motion.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-a. Interrogatories.
(a) Interrogatories are limited to ____ in number, including subparts, unless another limit is specified in the preliminary conference order. This limit applies to consolidated actions as well.
(b) Unless otherwise ordered by the court, interrogatories are limited to the following topics: name of witnesses with knowledge of information material and necessary to the subject matter of the action, computation of each category of damage alleged, and the existence, custodian, location and general description of material and necessary documents, including pertinent insurance agreements, and other physical evidence.
(d) At the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, interrogatories seeking the claims and contentions of the opposing party may be served unless the Court has ordered otherwise.
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§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-b. Privilege Logs.
(a) Meet and Confer: General. Parties shall meet and confer at the outset of the case, and from time to time thereafter to discus privilege logging
(b) Categorical Approach or Document-By-Document Review.
Parties in the Commercial Division should use categorical designations for privilege logs when possible to reduce time and costs. A certification must be provided for each category of documents.
If the requesting party refuses a categorical approach, the producing party must follow CPLR 3122 for document-by-document logging and may apply for cost allocation upon good cause shown.
If a party insists on a document-by-document privilege log, each uninterrupted email chain must be listed as a single entry with specific details about the email exchange.
(c) Special Master. In complex matters, a special matter may be used
The attorney in charge of privilege review must actively oversee the process to ensure timely production of responsive, non-privileged documents.
(e) Court Order. Agreements and protocols agreed upon by parties should be memorialized in a court order.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-b. Privilege Logs.
(a) Meet and Confer: General. Parties shall meet and confer at the outset of the case, and from time to time thereafter to discus privilege logging
(b) Categorical Approach or Document-By-Document Review.
Parties in the Commercial Division should use categorical designations for privilege logs when possible to reduce time and costs. A certification must be provided for each category of documents.
If the requesting party refuses a categorical approach, the producing party must follow CPLR 3122 for document-by-document logging and may apply for cost allocation upon good cause shown.
If a party insists on a document-by-document privilege log, each uninterrupted email chain must be listed as a single entry with specific details about the email exchange.
(c) Special Master. In complex matters, a special matter may be used
The attorney in charge of privilege review must actively oversee the process to ensure timely production of responsive, non-privileged documents.
(e) Court Order. Agreements and protocols agreed upon by parties should be memorialized in a court order.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-c. Discovery of Electronically Stored Information.
(a) Parties and nonparties should consult the Commercial Division’s Guidelines for Discovery of Electronically Stored Information (“ESI”) (the “ESI Guidelines”), and apply them as appropriate
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-c. Discovery of Electronically Stored Information.
(a) Parties and nonparties should consult the Commercial Division’s Guidelines for Discovery of Electronically Stored Information (“ESI”) (the “ESI Guidelines”), and apply them as appropriate
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-d. Limitations on Depositions.
(a) Unless otherwise stipulated to by the parties or ordered by the court:
(1) the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall be limited to _____; and
(2) depositions shall be limited to ____ hours per deponent.
(b) Notwithstanding subsection (a)(1) of this Rule, the propriety of and timing for depositions of non-parties shall be subject to any restrictions imposed by applicable law.
Multiple Depositions of representatives of one entity shall be treated as one deposition.
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§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-e. Responses and Objections to Document Requests
(a) For each document request propounded, the responding party shall, in its Response and Objections served pursuant to CPLR 3122(a) (the “Responses”), either:
i. state that the production will be made as requested; or
ii. state with reasonable particularity the grounds for any objection to production.
The responding party must provide specific responses to document requests, including whether objections apply to all or part of the request, whether documents are being withheld, and how production will be limited. The parties must also agree on a date for completing document production and a date for the responding party to state whether production is complete for each request. These obligations do not conflict with the party’s obligation to supplement its disclosures.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-e. Responses and Objections to Document Requests
(a) For each document request propounded, the responding party shall, in its Response and Objections served pursuant to CPLR 3122(a) (the “Responses”), either:
i. state that the production will be made as requested; or
ii. state with reasonable particularity the grounds for any objection to production.
The responding party must provide specific responses to document requests, including whether objections apply to all or part of the request, whether documents are being withheld, and how production will be limited. The parties must also agree on a date for completing document production and a date for the responding party to state whether production is complete for each request. These obligations do not conflict with the party’s obligation to supplement its disclosures.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-f. Depositions of Entities; Identification of Matters. Legal or commercial entities can be named as deponents in legal proceedings. The topics to be covered in a deposition of an entity must be clearly defined in the notice or subpoena.
: If a specific person is not identified to testify on behalf of an entity, the entity must designate one or more representatives to testify ten days before the scheduled deposition.
If a specific person is identified to testify on behalf of an entity, the entity must produce that person unless it provides timely notice of a substitute.
A subpoena served on a non-party entity must inform the entity of its obligation to designate individuals to testify.
Individuals designated to testify on behalf of an entity must provide information that is known or reasonably obtainable by the entity.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-f. Depositions of Entities; Identification of Matters. Legal or commercial entities can be named as deponents in legal proceedings. The topics to be covered in a deposition of an entity must be clearly defined in the notice or subpoena.
: If a specific person is not identified to testify on behalf of an entity, the entity must designate one or more representatives to testify ten days before the scheduled deposition.
If a specific person is identified to testify on behalf of an entity, the entity must produce that person unless it provides timely notice of a substitute.
A subpoena served on a non-party entity must inform the entity of its obligation to designate individuals to testify.
Individuals designated to testify on behalf of an entity must provide information that is known or reasonably obtainable by the entity.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-g. Proposed Form of Confidentiality Order.
The following procedure shall apply in those parts of the Commercial Division where the justice presiding so elects:
(a) For commercial cases requiring a confidentiality order, parties must submit the standard order from Appendix B to the court for signature
(b): If parties want to modify the standard confidentiality order, they must provide a detailed explanation for each change.
(c): To include a privilege claw-back provision, parties must use the language from Appendix B, Paragraph 18. If they want to modify this language, they must provide a written explanation.
(d): To include Attorney’s Eyes-Only protection, parties must submit the standard order from Appendix F to the court for approval. If they want to modify this form, they must provide a written explanation.
(e) Nothing in this rule shall preclude a party from seeking any form of relief otherwise permitted under the Civil Practice Law and Rules
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 11-g. Proposed Form of Confidentiality Order.
The following procedure shall apply in those parts of the Commercial Division where the justice presiding so elects:
(a) For commercial cases requiring a confidentiality order, parties must submit the standard order from Appendix B to the court for signature
(b): If parties want to modify the standard confidentiality order, they must provide a detailed explanation for each change.
(c): To include a privilege claw-back provision, parties must use the language from Appendix B, Paragraph 18. If they want to modify this language, they must provide a written explanation.
(d): To include Attorney’s Eyes-Only protection, parties must submit the standard order from Appendix F to the court for approval. If they want to modify this form, they must provide a written explanation.
(e) Nothing in this rule shall preclude a party from seeking any form of relief otherwise permitted under the Civil Practice Law and Rules
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 12. Non-Appearance at Conference.
The failure of counsel to appear for a conference may result in a sanctions
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 12. Non-Appearance at Conference.
The failure of counsel to appear for a conference may result in a sanctions
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 13. Adherence to Discovery Schedule, Expert Disclosure.
(a): Parties must adhere to discovery deadlines set in case scheduling orders. Extensions may be granted by mutual consent, but all discovery must be completed by the preliminary conference order’s discovery cutoff date. Extension requests must be made promptly before the deadline expires. Non-compliance may result in sanctions under CPLR 3126.
(b): If a party requests documents before a deposition and those documents are not provided by the deadline, the requesting party may ask the court to prevent the non-producing party from introducing those documents at trial.
(c): If a party intends to use expert testimony, a schedule for expert disclosure must be established within 30 days of fact discovery completion. This includes identifying experts, exchanging reports, and conducting depositions of testifying experts. All expert disclosure must be completed within four months of fact discovery completion. If a party objects to this procedure or timetable, the parties must request a conference with the court to discuss the objection.
The note of issue and certificate of readiness may not be filed until the completion of expert disclosure. Expert disclosure provided after these dates without good cause will be precluded from use at trial.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 13. Adherence to Discovery Schedule, Expert Disclosure.
(a): Parties must adhere to discovery deadlines set in case scheduling orders. Extensions may be granted by mutual consent, but all discovery must be completed by the preliminary conference order’s discovery cutoff date. Extension requests must be made promptly before the deadline expires. Non-compliance may result in sanctions under CPLR 3126.
(b): If a party requests documents before a deposition and those documents are not provided by the deadline, the requesting party may ask the court to prevent the non-producing party from introducing those documents at trial.
(c): If a party intends to use expert testimony, a schedule for expert disclosure must be established within 30 days of fact discovery completion. This includes identifying experts, exchanging reports, and conducting depositions of testifying experts. All expert disclosure must be completed within four months of fact discovery completion. If a party objects to this procedure or timetable, the parties must request a conference with the court to discuss the objection.
The note of issue and certificate of readiness may not be filed until the completion of expert disclosure. Expert disclosure provided after these dates without good cause will be precluded from use at trial.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 14. Disclosure Disputes.
If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case.
Discovery disputes are preferred to be resolved through court conference as opposed to motion practice and Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure.
If counsel are unable to resolve any disclosure dispute in this fashion, counsel for the moving party shall submit a letter to the court not exceeding three single-spaced pages outlining the nature of the dispute and requesting a telephone conference.
Not later than four business days after receiving such a letter, any affected opposing party or non-party shall submit a responsive letter not exceeding three single-spaced pages.
After the submission of letters, the court will schedule a telephone or in-court conference with counsel.
The failure of counsel to comply with this rule may result in a motion being held in abeyance until the court has an opportunity to conference the matter. If the parties need to make a record, they will still have the opportunity to submit a formal motion.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 14. Disclosure Disputes.
If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case.
Discovery disputes are preferred to be resolved through court conference as opposed to motion practice and Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure.
If counsel are unable to resolve any disclosure dispute in this fashion, counsel for the moving party shall submit a letter to the court not exceeding three single-spaced pages outlining the nature of the dispute and requesting a telephone conference.
Not later than four business days after receiving such a letter, any affected opposing party or non-party shall submit a responsive letter not exceeding three single-spaced pages.
After the submission of letters, the court will schedule a telephone or in-court conference with counsel.
The failure of counsel to comply with this rule may result in a motion being held in abeyance until the court has an opportunity to conference the matter. If the parties need to make a record, they will still have the opportunity to submit a formal motion.
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 14-a. Rulings at Disclosure Conferences. The following procedures shall govern all disclosure conferences conducted by non-judicial personnel.
(a) At the request of any party
(1) prior to the conclusion of the conference, the parties shall prepare a writing setting forth the resolutions reached and submit the writing to the court for approval and signature by the presiding justice; or
(b) With respect to telephone conferences, upon request of a party and if the court so directs, the parties shall agree upon and jointly submit to the court within one (1) business day of the telephone conference a stipulated proposed order,
§ 202.70 RULES OF THE COMMERCIAL DIVISION OF THE SUPREME COURT
Rule 14-a. Rulings at Disclosure Conferences. The following procedures shall govern all disclosure conferences conducted by non-judicial personnel.
(a) At the request of any party
(1) prior to the conclusion of the conference, the parties shall prepare a writing setting forth the resolutions reached and submit the writing to the court for approval and signature by the presiding justice; or
(b) With respect to telephone conferences, upon request of a party and if the court so directs, the parties shall agree upon and jointly submit to the court within one (1) business day of the telephone conference a stipulated proposed order,
