[co-author: Daniel Pesciotta]
Effective Feb. 1, 2021, New York’s Uniform Rules for the Supreme Court and County Court will see sweeping changes. A product of the courts and power delegated by the New York State Constitution, these rules govern the technical, day-to-day aspects of civil litigation and provide requirements in addition to those contained in the Civil Practice Law and Rules (CPLR), which are a legislative product and broadly govern civil actions from start to finish. By Administrative Order, Chief Administrative Judge Lawrence Marks praised the New York State Commercial Division’s efficiency and incorporated many of its rules.
Below is an overview of some of the most important takeaways and our commentary for those with business before state Supreme and County Courts in New York.
Counsel’s Knowledge and Authority: Current Rule 202.1 is amended to provide that counsel who appear must be familiar with the case and be fully prepared and authorized to discuss and resolve issues regarding the appearance. Failure to comply with this rule may be treated as 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. While this is a requirement that counsel largely comply with, in light of the potentially dire consequences for non-compliance, attorneys would be well-advised to ensure that they—and also their colleagues who may cover—are adequately prepared for all appearances.
Interrogatories: Interrogatories are now limited to 25, including subparts, unless the court orders otherwise by new Rule 202.20. The CPLR does not contain a limitation.
Depositions: Among other changes, under new Rule 202.20-b, depositions will be limited to seven hours per deponent. But for good cause shown, the court may alter the limits. The CPLR does not provide a time limit. This rule is likely to be the source of future disputes for those who seek additional information from a witness, especially if the seven-hour window is frustrated by untimeliness and improper speaking objections. Notably, both the New York Commercial Division and Federal Rules of Civil Procedure contain a seven-hour time limitation for depositions. Rule 202.20-d provides more particular requirements for the deposition of corporate entities that are similar to Federal Rule 30(b)(6).
Adherence to discovery schedule: Under new Rule 202.20-e, parties must strictly comply with discovery obligations by the dates set in all case scheduling orders. Non-compliance may result in sanctions under CPLR § 3126. This rule doubles down on the power of court orders and the CPLR’s framework, which provides straightforward deadlines for its various discovery devices and relief if a party is non-compliant.
Disclosure disputes: Under new Rule 202.20-f, the court encourages, to the maximum extent possible, discovery disputes to be resolved through informal procedures such as conferences as opposed to motion practice. Counsel must consult with each other in good faith either in-person or by telephone to resolve all disclosure disputes. If a party makes a motion, it must include an affidavit or affirmation attesting to either: (i) conducting a conference including the date, time, persons participating, and length of time; or (ii) the efforts made to obtain such a conference and the responses received. This rule tightens up the framework already in place requiring good faith efforts prior to discovery motions. E-mails and letters alone will not suffice. Parties would be well-advised to document their telephone call specifics.
Motion papers: Under new Rule 202.8-b, affidavits, affirmations, briefs, and memoranda of law shall be limited to 7,000 words. Reply documents are limited to 4,200 words. Every brief, memorandum, affirmation, and affidavit shall include a certification by counsel who has filed the document setting forth the word count and certifying that the document complies. Judges often provide page limits and motion paper nuances in their part rules. This rule will harmonize those various rules and provide clear limitations on long-windedness. All memoranda of law, affidavits, and affirmations exceeding 4,500 words shall include bookmarks providing a listing of the document’s contents and facilitating easy navigation by the reader within the document.
Statements of Material Facts: Under new Rule 202.8-g, summary judgment motions shall include a short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. The responding party shall include a correspondingly numbered paragraph responding to each numbered paragraph indicating the material fact requiring trial. Each numbered paragraph of the movant’s statement of material facts will be deemed admitted unless the responding party controverts it. Parties must take particular note of this rule. While New York law favors deciding issues on their merits, this rule will provide opportunistic counsel the chance to justifiably argue that an opponent’s failure to contest an argument amounts to a concession. Notably, while the new Rule also permits the responding party to raise additional material facts to be tried, the Rule has no corresponding requirement that the movant respond to those additional facts.
Oral argument: These rules remain largely the same, except that the court expressly indicated in new Rule 202.8-f(c) that it may conduct oral argument by electronic means. As the court and litigants alike have adapted to additional proceedings taking place virtually in the wake of the COVID-19 pandemic, parties can reasonably expect more oral arguments, depositions, and other previously-in-person events to take place virtually as technology and know-how continues to advance.
Expert witness disclosure: There is no amendment to the existing framework for the Supreme and County Courts. Generally, unlike most other states, New York does not provide a uniform framework for expert depositions. Expert disclosure can be exchanged very close to trial, except for cases pending in the Commercial Division. The Commercial Division Rules provide a framework for expert depositions prior to trial and more stringent requirements detailing the expert’s relationship to the offering party and background. In non-commercial civil actions, experts may only be deposed upon a court order showing special circumstances.
Taken in total, these rules provide an extra layer of clarity to some commonly-known ambiguities in the CPLR. The court codified some practices that the pandemic has amplified, including conducting oral argument by electronic means and providing an overt effort to encourage parties to conduct telephonic conferences with each other to resolve disclosure disputes.
Parties would be well-advised to consult these rule changes in their entirety to ensure they comply and regularly consult them before undertaking work that the court oversees. Parties would also be well-advised to review any applicable local and/or judicial rules for additional or differing requirements.