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Current Developments in the Commercial Divisions of the
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Posted: January 15, 2015

Recent Amendments to the Commercial Division Rules

Recently, the Chief Administrative Judge has adopted several changes to the Commercial Division Rules.

On December 23, 2014, the Chief Administrative Judge signed Administrative Order 336a/14, which effected rule changes relating to depositions effective April 1, 2015. The change added a new Rule 11-d, which provides:

Rule 11-d. Limitations on Depositions.
(a) Unless otherwise stipulated to by the parties or ordered by the court:
(1) the number of depositions taken by plaintiffs, or by defendants, or by third party defendants, shall be limited to 10; and
(2) depositions shall be limited to 7 hours per deponent.
(b) Notwithstanding subsection (a)(l) of this Rule, the propriety of and timing for depositions of non-parties shall be subject to any restrictions imposed by applicable law.
(c) For the purposes of subsection (a)(1) of this Rule. the deposition of an entity pursuant to CPLR 3106(d) shall be treated as a single deposition even though more than one person may be designated to testify on the entity’s behalf.
(d) For the purposes of this Rule, each deposition of an officer, director, principal or employee of an entity who is also a fact witness, as opposed to an entity representative pursuant to CPLR 3106(d), shall constitute a separate deposition.
(e) For good cause shown, the court may alter the limits on the number of depositions or the duration of an examination.
(f) Nothing in this Rule shall be construed to alter the right of any party to seek any relief that it deems appropriate under the CPLR or other applicable law.

Conforming changes were made to Rule 8, which was amended to add to the list of topics covered in a preliminary conference “(xii) the need to vary the presumptive number or duration of depositions set forth in Rule 11-d.” Similarly, Rule 11 was amended to provide, regarding the preliminary conference order: “Additionally, the court should consider the appropriateness of altering prospectively the presumptive limitations on depositions set forth in Rule 11-d.”

On January 6, 2015, the Chief Administrative Judge signed Administrative Order 05/15, which amended paragraph (g) of the preamble to the Commercial Division Rules effective April 1, 2015. The added provision provides:

Preamble. The Commercial Division understands that the businesses, individuals and attorneys who use this Court have expressed their frustration with adversaries who engage in dilatory tactics, fail to appear for hearings or depositions, unduly delay in producing relevant documents, or otherwise cause the other parties in a case to incur unnecessary costs. The Commercial Division will not tolerate such practices. The Commercial Division is mindful of the need to conserve client resources, promote efficient resolution of matters, and increase respect for the integrity of the judicial process. Litigants and counsel who appear in this Court are directed to review the Rules regarding sanctions, including the provisions in Rule 12 regarding failure to appear at a conference, Rule 13(a) regarding adherence to discovery schedules, and Rule 24(d) regarding the need for counsel to be fully familiar with the case when making appearances. Sanctions are also available in this Court under Rule 3126 of the Civil Practice Law and Rules and Part 130 of the Rules of the Chief Administrator of the Courts. The judges in the Commercial Division will impose appropriate sanctions and other remedies and orders as is warranted by the circumstances. Use of these enforcement mechanisms enables the Commercial Division to function efficiently and effectively. and with less wasted time and expense for the Court, parties and counsel. Nothing herein is intended to expand or alter the scope and/or remedies available under the above-cited sanction rules.

On January 9, 2015, the Chief Administrative Judge signed Administrative Order 33/15, which amended Rule 14, Discovery Disputes, effective April 1, 2015. The amended rule provides:

If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case. If the court’s Part Rules are silent with respect to discovery disputes, the following Rule will apply. Discovery disputes are preferred to be resolved through court conference as opposed to motion practice. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See Section 202.7. If counsel are unable to resolve any disclosure dispute in this fashion, counsel for the moving party shall submit a letter to the court not exceeding three single-spaced pages outlining the nature of the dispute and requesting a telephone conference. Such a letter must include a representation that the party has conferred with opposing counsel in a good faith effort to resolve the issues raised in the letter or shall indicate good cause why no such consultation occurred. Not later than four business days after receiving such a letter, any affected opposing party or non-party shall submit a responsive letter not exceeding three single-spaced pages. After the submission of letters, the court will schedule a telephone or in-court conference with counsel. The court or the court’s law clerks will attempt to address the matter through a telephone conference where possible. The failure of counsel to comply with this rule may result in a motion being held in abeyance until the court has an opportunity to conference the matter. If the parties need to make a record, they will still have the opportunity to submit a formal motion.

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