Comments on a proposed amendment to require certain initial disclosures

SUMMARY

The Council on Judicial Administration, Litigation Committee and the State Courts of Superior Jurisdiction Committee discussed the proposal to amend Commercial Division Rule 11 to Require Certain Initial Disclosures and did not support it for two reasons. Many members of the Council on Judicial Administration and State Courts Committee believe that initial disclosures, as practiced in federal court, are often redundant and create unnecessary work for the parties, as the information is typically already known or can be obtained through targeted discovery demands. While the Litigation Committee supports initial disclosures in principle, they oppose the current version due to significant differences with the federal rule, such as requirements for document production, ambiguity around what constitutes tangible things, and penalties for failure to disclose or lack of good faith. These differences, they argue, could lead to unnecessary motion practice, and they consider the proposed rule a departure from the federal framework, which is why they do not support the proposal.

REPORT

By Email
David Nocenti, Esq.
Office of Court Administration
25 Beaver Street, 10th Floor
New York, NY 10004
rulecomments@nycourts.gov

Re: New York City Bar Association Response to Request for Public Comment on Proposal to Amend Commercial Division Rule 11 to Require Certain Initial Disclosures

Dear Mr. Nocenti:

We write to provide comments with respect to the Request for Public Comment on the proposal to amend Commercial Division Rule 11 to Require Certain Initial Disclosures.

The New York City Bar Association’s Council on Judicial Administration, State Courts of Superior Jurisdiction Committee, and Litigation Committee have considered and discussed the proposed rule change and do not support it, for two principal reasons.

Initially, many members of the Council on Judicial Administration and State Courts of Superior Jurisdiction Committee expressed the view that, based on their experience practicing in federal court, initial disclosures provide little value. Initial disclosures rarely provide significant information that is not already known to the parties. As a result, many members expressed the view that initial disclosures create unnecessary work for the parties. It was also expressed that, should parties to a litigation need the information that would otherwise be provided in initial disclosures, these parties easily prepare targeted discovery demands. By contrast, the majority of the members of the Litigation Committee generally supported having an initial disclosure requirement mirroring the one in federal court, believing that initial disclosures can provide useful information at the beginning of the case as to the scope of needed discovery. However, the Litigation Committee declines to support the initial disclosure rule as currently drafted because of important ways in which it diverges from the federal rule, as discussed below.

Second, members expressed serious concern with the following specific provisions of the proposed rule.

• That the rule would require the production of documents and not just lists or descriptions [(a)(1)(A)(ii)]. This could potentially be onerous in the early stages of litigation. Notably, this provision is not contained in the federal analogue (FRCP § 26).
• It is unclear what would constitute a reference to tangible things in the pleadings [a)(1)(A)(ii)].
• The rule implies that the penalty for failure to disclose [(a)(2)], based on a standard of whether the information “could have not been disclosed” at the outset, could be preclusion. Not only do our members feel that this is not a proportional response, but this provision is also not contained in FRCP § 26.
• That the failure to utilize good faith in making an initial disclosure could result in sanctions [(a)(3)]. This differs from FRCP § 26.

Thus, despite the proposal’s claim that this rule would provide an initial disclosure regime “comparable to those in use by federal courts,” we think there are material differences between the proposed rule and FRCP § 26. The latter three points bulleted above may also serve as fodder for otherwise unnecessary motion practice which is not currently governed by any precedential standards in New York State courts or federal court. Thus, although certain members supported having an initial disclosure requirement mirroring the federal one, these differences caused these members to vote against the proposal.

Thank you for considering our comments. If you believe that it would be beneficial, we would be happy to discuss these comments with you further.

Sincerely,

Fran Hoffinger, Chair
Council on Judicial Administration

Cassandra Porsch, Chair
Litigation Committee

Amy D. Carlin, Chair
State Courts of Superior Jurisdiction