Response to OCA Request For Public Comment on Proposed Changes to Commercial Division Rules

By Email
Eileen D. Millett, Esq.
Counsel
Office of Court Administration
25 Beaver Street, 11th Floor
New York, NY 100041
rulecomments@nycourts.gov

Re:      Response to (1) September 7, 2021 Request for Public Comment on Proposal to Amend Commercial Division Rules 11-c, 8, 1(b), 9(d), 11-e(f), 11-g, and Appendices A, B, E, and F to Provide Additional Guidelines Related to the Discovery of Electronically Stored Information in the Commercial Division; and (2)  September 14, 2021 Request for Public Comment on Proposal to Amend Commercial Division Rule 11 to Include a Preamble on Proportionality and Reasonableness and to Add Provisions Allowing the Court to Direct Early Case Assessment Disclosures and Analysis (the “Proposals”)

Dear Ms. Millett:

We write in response to your Request for Public Comment on the above-referenced Proposals.

The City Bar’s Council on Judicial Administration and State Courts of Superior Jurisdiction and Litigation Committees have considered the Proposals.  As discussed below, we support the Proposals with a few, small changes discussed below that we view as furthering the purpose of the Proposals.

First, the Proposals do not address, but should, the often difficult and time-consuming question of the technical aspects of a production.  That is, in what format should ESI be produced and what data should be produced, beyond an image of the document being produced?  For that reason, we propose that Rule 11 in addition be amended to provide for the use of the ESI stipulation attached as Exhibit 1.

Importantly, the proposed stipulation creates the framework for the process of meeting and conferring regarding the technical aspects of a production but the parties are free to modify or amend it by agreement so they can adopt the approach that is best for them in the context of their litigation.  The proposed ESI stipulation contains a privilege claw-back provision for the parties to use on the rare occasions when they are not using the Commercial Division model confidentiality order which, under the Proposals, now will contain a privilege claw-back provision.

Second, the proposed new Rule 11(a) and (b) should be modified to make clear that any written description of a party’s claims/defenses is not binding and does not limit the scope of its pleadings; it simply is a tool to facilitate case management.  We propose addressing this with a new subparagraph (c) stating: “Any written description of a party’s claims/defenses provided under this rule is not binding and does not limit the scope of a party’s pleadings.”

Third, with respect to the Preamble to Rule 11, we believe that it is important to add that depositions should also be handled in a manner that is proportional and reasonable in light of the complexity of the case and the amount of proof required to resolve the claims and defenses.  Indeed, whereas current Commercial Division Rule 11-d provides for a total of 10 depositions by each party, each up to 7 hours in duration, the issues in a particular case may not warrant numerous depositions.  Accordingly, we propose revising the final sentence to the Preamble, as follows (additional language underlined): “It is important that counsel’s discovery requests, including depositions, are both proportional and reasonable in light of the complexity of the case and the amount of proof that is required for the cause of action.”

Thank you for your consideration.

Respectfully,

Michael P. Regan, Chair
Council on Judicial Administration 

Bart J. Eagle, Chair
State Courts of Superior Jurisdiction Committee 

John M. Lundin, Chair
Litigation Committee