Chief Administrative Judge Larry Marks recently issued Administrative Order 270/20 (“AO 270/20”), which, effective February 1, 2021, incorporated certain aspects of the Rules of the Commercial Division into the Uniform Rules for the Supreme and County Courts (“Uniform Rules”). Attorneys desiring the efficiencies of the Commercial Division, now established in 24 counties across New York State, should be delighted to learn of the new rule changes coming to the Supreme Court. Although portions of the new rules overlap with existing rules, to maximize the efficiencies sought by AO 270/20 and to mitigate confusion, attorneys must avoid pitfalls of habit by carefully analyzing the new rules.
In addition to the most substantial changes discussed below, AO 270/20 addresses: a good cause requirement for adjournments of conferences, procedures surrounding request for oral argument, the renunciation of sur-reply and post-submission papers, the need for dictation of rulings at disclosure conferences into the record, and minor changes on defraying expenses for discovery of ESI from nonparties. For organizational purposes, the following discussion, summarizing the most substantive changes to the Uniform Rules, has been broken into four categories: discovery, motions and applications, trial matters, and attorney cooperation.
Adherence to Discovery Schedule, Expert Disclosure; Disclosure Disputes
New Uniform Rule 202.20-e purports to take a strict stance on adherence to discovery scheduling orders. The section provides that parties must “strictly comply with all discovery obligations” and that non-compliance with the scheduling order may result in sanctions under CPLR 3126, which of course, may include dismissal. Further, new Section 202.20-f provides that discovery disputes should be resolved through informal procedures such as in person or telephonic conferences, rather than motion practice. If motion practice is necessary, each motion must be accompanied by an affidavit or affirmation, attesting to the date and time of prior informal conference, persons participating, and the length of time of the conference. This should be familiar as this new rule builds on and bolsters the affidavit requirement under already existing Section 202.7.
New Section 202.20-a of the Uniform Rules provides that parties shall meet and confer at the outset of the case and from time to time thereafter to discuss privilege logs. Such discussions must include the extent of the information in the privilege logs and the possibility of implementing categorical privilege logs to reduce document by document logging. Agreements and protocols agreed upon by parties must be memorialized in a court order. In the event the parties cannot come to agreement, the court will, by order, provide for the scope, nature, and format of the privilege log.
Limitation on Depositions; Interrogatories
Under the new Section 202.20-b, the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, is limited to 10, and to 7 hours per deponent, unless otherwise stipulated to by the parties or ordered by the court. In addition, a new Section 202.20 of the Uniform Rules limits the number of interrogatories to 25, including subparts, unless the court orders otherwise.
Responses and Objections to Document Requests
Section 202.20-c of the Uniform Rules now provides that for every document request, the responding party shall, in its response and objections served pursuant to CPLR 3122(a) either state that the production is made as requested, or state with reasonable particularity the grounds for any objection to production. Each response must state:
- whether the objection(s) interposed pertains to all or part of the request being challenged;
- whether any documents or categories of documents are being withheld, and if so which of the stated objection(s) forms the basis for the responding party’s decision to withhold otherwise responsive documents or categories of documents; and
- the manner in which the responding party intends to limit the scope of its production.
In addition, the responding party must verify, for each request, whether the production of documents in its possession, custody or control and that are responsive to the individual request is complete, or whether there are no documents in its possession, custody or control that are responsive to the individual request.
Rules Regarding the Contents of Notices or Subpoenas Directed to Various Deponent Entities such as Corporations, Estates, and Trusts
New Uniform Rule Section 202.20-d expands on portions of CPLR 3106(d). In addition, the new rule provides that the party seeking the deposition has the option but not the requirement to identify the specific corporate representative(s) of the entity it seeks to depose. If the party declines to identify a particular deponent, then the entity must, at least ten days before the deposition, identify by name and title who will testify at the deposition. Pursuant to CPLR 3106(d), if the party seeking the deposition does designate a particular deponent, and elects to set forth the topics for examination, the entity must produce that deponent or, at least ten days before the deposition, notify the other party of the name and title of who will testify instead.
- Motions and Applications
Motions in General; Motions for Summary Judgment; Statements of Material Facts
A new Section 202.8-g of the Uniform Rules provides that for any motion for summary judgment, besides a CPLR 3213 motion, there shall be a separate, short, statement in numbered paragraphs of the material facts to which the moving party contends there is no genuine issue to be tried. The opposing papers must include a correspondingly numbered paragraph responding to each paragraph in the statement of the moving party. Each material fact or controverting statement must be followed by a citation to evidence in support/opposition. The rule goes on to say that a material fact will be deemed admitted unless specifically controverted by a correspondingly numbered paragraph.
Uniform Rule Section 202.8-a now provides that counsel must submit as part of the motion papers copies of all pleadings and other documents as required by the CPLR and as necessary for an informed decision on the motion (especially on motions pursuant to CPLR 3211 and 3212). While CPLR 3212(b) has always required that pleadings be attached to motions for summary judgment, the same is not true for CPLR 3211. The new rule makes explicit that the same rule applies to motions to dismiss, which, despite not being an explicit CPLR requirement, has been the basis for courts denying CPLR 3211 motions in the past. In addition, the rule provides that no proposed order should be submitted with motion papers on a dispositive motion.
Length and Form of Papers
New Section 202.8-b addresses the length of papers. Unless otherwise permitted by the court, affidavits, affirmations, briefs and memoranda of law in chief are limited to approximately 7,000 words each. Reply affidavits, affirmations, and memoranda are limited to approximately 4,200 words each. Every brief memorandum, affirmation, and affidavit shall include a certification by the counsel stating compliance with the word limit. In addition, each electronically submitted memorandum of law, affidavit and affirmation exceeding 4,500 words must include bookmarks providing a listing of the document’s contents and facilitating easy navigation of the document.
Applications for TROs and Orders to Show Cause
The new rule Section 202.8-d emphasizes that motions may only be brought on by order to show cause when there is a genuine urgency to do so. In addition, it should be noted that there is significant overlap between the new Section 202.8-e, and the already existing Section 202.7(f), which both express strong disfavor towards ex parte TROs. Perhaps the new section, in specifically referencing the ex parte TRO, will make obtaining same even more cumbersome. Any application for temporary injunctive relief must be accompanied by an affirmation attesting to compliance with Section 202.8-e. Given the overlap with Section 202.7(f), the affirmation requirements of both sections must be carefully assessed.
- Trial Matters
Pre-Trial Memoranda, Exhibit Book and Requests for Jury Instructions
New Section 202.20-h provides that counsel shall submit pre-trial memoranda at the pre-trial conference. On the first day of trial or at such other time as the court may set, counsel must submit an indexed binder or notebook, or the electronic equivalent, of trial exhibits for the court’s use. Where the trial is by jury, counsel shall provide the court with case specific requests for jury interrogatories. A reference to a PJI number will suffice.
Scheduling Witnesses; Direct Testimony by Affidavit
A new Section 202.37 of the Uniform Rules provides that at the commencement of the trial each party will identify in writing for the court witnesses it intends to call at trial, and the order and length of testimony. The list must be provided to opposing counsel, and counsel must prepare a separate list for the court identifying whether the witness is a direct witness, or whether the witness is being called solely for credibility or rebuttal. For “good cause and in absence of substantial prejudice,” a non-identified witness may be called to testify.
In addition, Section 202.20-i provides that in non-jury trials or evidentiary hearings, the court may require direct testimony of a witness in affidavit form. The opposing party “shall have the right to object to statements in the direct testimony affidavit and the court shall rule on such objections, just as if the statements had been made orally in open court.”
- Attorney Cooperation
Consultation prior to Preliminary Conferences
A new Section 202.23 of the Uniform Rules now provides that counsel for all parties must consult prior to the preliminary or compliance conference, and make a good faith effort to reach agreement about:
- resolution of the case, in whole or part
- discovery, including discovery of electronically stored information, and any other issues to be discussed at the conference
- the use of alternate dispute resolution to resolve all or some issues in the litigation; and
- any voluntary and informal exchange of information that the parties agree would help aid early settlement of the case.
The pretrial conference, of course occurring well after the preliminary conference that is described here, has a new, even closer cousin, described more fully below.
Settlement and Pretrial Conferences; Pre-Marking of Exhibits
In addition to the pretrial conference, amended Section 202.26 describes a “settlement conference.” Essentially, any time after the discovery cutoff date the court may schedule a settlement conference at which all parties are expected to discuss settlement. The new rule is more flexible on timing of the pretrial conference. Any time prior to trial is acceptable now, instead of 15-45 days prior to trial as stated in the old rule. The rule retains the general notion that the pretrial conference is geared towards simplifying issues before trial.
In addition, new Section 202.34 provides that the parties must consult prior to trial and make a good faith attempt to agree on which the exhibits may be offered into evidence without objection. Prior to the commencement of the trial, each side must mark its exhibits into evidence, subject to court approval, as to those to which no objection has been made. The court will rule upon objections to the contested exhibits, which are to be preliminarily marked for identification only, at the earliest possible time.
Appearance by Counsel with Knowledge and Authority and Staggered Appearances
Section 202.1 of the Uniform Rules contains two new subdivisions providing that counsel must be familiar with and fully prepared to discuss the case for which they appear. Failure to do so may result in a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130.2.1. The attorney or firm who finds themselves pressed for time, for whatever reason, or the attorney providing coverage for an appearance, must be weary of the potential draconian consequences of showing up unprepared. Attorneys, particularly those in some of the more crowded courthouses, will be pleased with the introduction of staggered court appearances under a new Section 202.23. In addition, requests for adjournment under the new rule must be transmitted in writing to the court and all parties no later than 48 hours before the scheduled hearing. This builds on existing Rule 202.8(e), and of course, any existing local rules regarding adjournments.
Alternative Dispute Resolution; Settlement Conference before a Justice Other Than the Justice Assigned to the Case
Under the new Section 202.29 of the Uniform Rules, counsel may jointly request that the assigned judge or justice grant a separate settlement conference with a “settlement judge.” The conference is to be granted in the discretion of the assigned judge, upon a finding that the separate settlement judge would be “beneficial to the parties and the court and would further the interests of justice.”
Settlements and Discontinuances
Gone is the 20-day requirement for the defendant to file any stipulation or statement of discontinuance with the county clerk. Now, Uniform Rule 202.28 states that counsel shall immediately inform either: the assigned judge or court part by submission of a copy of the stipulation; or the clerk of the part by submission of a letter, along with notice to the chambers of the assigned judge via telephone, or email. This notification is in addition to the filing of a stipulation with the county clerk.
While many of the rule changes to Supreme Court practice will be welcomed by and familiar to those appearing regularly in existing commercial parts and/or federal courts, other attorneys must be sure to thoroughly assess all of the new Uniform Rule changes, especially in the absence of clarifying guidance or caselaw. Of course, it remains to be seen to what extent the streamlined procedures of the Commercial Division will permeate through Supreme Court practice. The bench, bar, and of course, clients, will be well served if practitioners and court staff alike hit the ground running when working with the new Uniform Rules.
This article was co-written by Jeffrey Ehrhardt, a law clerk and law school student who is not yet admitted to the New York State Bar.