Proposed Amendments to Commercial Division Rules 14, 14‑b, and 6

SUMMARY

The Council on Judicial Administration (James P. Chou, Chair), Litigation Committee (Cassandra Porsch, Chair), and State Courts of Superior Jurisdiction Committee (Joseph M. Sanderson, Chair) submitted comments on proposed changes to Commercial Division Rules 14, 14-b, and 6. With respect to the proposal to amend Commercial Division Rule 14 regarding good faith consultations on discovery disputes, the committees supported the proposal in concept but with substantial revisions. Among other things, the committees raised concerns about the appealability of orders issued on letter briefs submitted without a formal notice of motion or order to show cause (which could necessitate filing a motion to vacate in order to obtain an appealable order). On the  proposal to add a new Commercial Division Rule 14-b regarding cost shifting in connection with discovery disputes, the State Courts and Litigation Committees supported the proposal with amendments. The committees noted, inter alia, that “discovery disputes” is not clear as there are different types of discovery disputes, and that the rule should clarify whether it applies cost-shifting only for discovery itself or also for meritless discovery motions. And on the proposal to amend Commercial Division Rule 6 regarding citations, the State Courts and Litigation Committees opposed the proposal unless amended. The committees highlighted, among other concerns, that requiring pincites (and, particularly, requiring both page and paragraph numbers for affirmation citations) unnecessarily codifies basic good practice, and that a corresponding enlargement of word limits should accompany the rules change to accommodate the extra words required by these citation formats.

REPORT

By Email        

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

Re: New York City Bar Association Comments on Proposed Rule amendments to Commercial Division Rules 14, 14-b and 6

Dear Mr. Nocenti:

We write to provide comments from the New York City Bar Association’s Council on Judicial Administration (CJA), State Courts of Superior Jurisdiction Committee, and Litigation Committee with respect to the above-referenced proposed Commercial Division Rule amendments as follows:

(1) Proposal to amend Commercial Division Rule 14 regarding good faith consultations on discovery disputes:^[1]

Our committees support this proposal in concept but with substantial revisions.

The State Courts Committee supports this proposal with amendments. The committee believes that the current text is ambiguous as to some issues regarding whether a decision made after letter briefing would be an order determining a motion made on notice for the purposes of appeal. Because letter briefing does not involve a formal notice of motion or order to show cause, there is a possibility that orders determining discovery disputes after letter briefing would require subsequent formal motion to vacate the order to have an appealable order. To the extent that this proposed rule appears to give discretion to judges to prohibit filing of formal motions, this rule may have unintended impacts on appealability and a final rule should consider addressing the issue of whether an order after letter briefing is intended to be treated as having been made on notice for the purposes of appealability and provide for how this rule applies to motions to vacate.

The Litigation Committee supports the proposed changes, with members having expressed the need to put more “teeth” into the meet-and-confer process, and also the desirability of having the Commercial Division Rules better align with the general IAS Part rules.

CJA’s members generally felt that the proposal does not improve the process currently in place, but rather imposes obligations to provide potentially onerous details, such as exact dates on which consultations took place, the names of participants, the substance of discovery disputes, etc.  The general sentiment was that the proposed amendment is unnecessary. Additionally, CJA shared the same concerns raised by State Courts about the appealability of orders issued on letter briefs submitted without a formal notice of motion or order to show cause, which suggests that a motion to vacate would be necessary to obtain an appealable order.

(2) Proposal to add a new Commercial Division Rule 14-b regarding cost shifting in connection with discovery disputes:^[2]

The State Courts and Litigation Committees support this proposal with amendments. (CJA declined to weigh in on this proposal.)

State Courts believes that the proposed requirement that the parties state their contentions regarding how much of the cost is an undue burden is how most courts now rule on such issues anyway. However, the proposed rule copied from Texas is much less clear than the Georgia and North Carolina examples are as to whether it would apply cost-shifting only for discovery itself or also cost-shifting for meritless discovery motions. The committee was concerned that it may make it harder to obtain cost shifting for frivolous discovery motions (or frivolous oppositions to discovery motions) if parties are required to predict whether a motion will be opposed, whether there will be a hearing, and any of the other factors that might affect cost-shifting on a discovery motion.

The Litigation Committee believes “discovery disputes” is insufficiently clear, as there are different types of discovery disputes and the cited rules in the memo from other states appear to apply to cost-shifting for document production when one side wants something produced and the other side argues its overly burdensome. If this is what is intended by the proposed rule, it is unclear why the language from the other states’ rules was not used. The committee recommends (i) clarifying what discovery disputes the rule applies to, and (ii) clarifying that the rule does not expand entitlement to fee-shifting beyond existing standards.

(3) Proposal to amend Commercial Division Rule 6 regarding citations.^[3]

The State Courts and Litigation Committees oppose this proposal unless amended. (CJA declined to weigh in on this proposal.)

The State Courts Committee expressed concern at the increasing length of the Commercial Division rules due to the addition of advisory or precatory rules that have no obvious consequence for violation and that merely restate what most competent lawyers would do anyway. Among other things, the fact that major research databases treat the entire Commercial Division Rules as a single section of 22 NYCRR § 202 and do not allow straightforward rule-by-rule searches of citing references means that compounding the length of the rules has real costs for lawyers’ (and even more so for pro se litigants’) ability to find relevant rules. The committee viewed requiring pincites as a prime example of this tendency to unnecessarily codify basic good practice.

State Courts also disapproved of the pincite format the proposed rule requires. Members viewed requiring both page and paragraph numbers for affirmation citations as superfluous, and expressed concern that requiring repetitive descriptions with every NYSCEF document citation would clog up and make briefs less readable. State Courts is particularly concerned that the proposed rule omits CDAC’s request to enlarge word limits by 100 to accommodate the extra words required by these citation formats, likely leading to more applications to enlarge word limits and creating burdens on the court. Alternatively, practitioners may simply ignore the format required by the rule because it does not contemplate particular penalties for noncompliance.

The Litigation Committee agrees that the proposed rule must be accompanied by an amendment adding 100 words to the word limit.

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

Respectfully,

James P. Chou, Chair
Council on Judicial Administration

Cassandra Porsch, Chair
Litigation Committee

Joseph M. Sanderson, Chair
State Courts of Superior Jurisdiction