Rule Amendments Narrow Discovery and Clarify Motion Practice in New York’s Commercial Division | Harris Beach PLLC


Through Administrative Orders, New York state recently amended its Commercial Division rules with an eye towards streamlining discovery and clarifying points of disagreement in summary judgment motions. Attorneys and litigants alike should be mindful of these changes, as they may impact all lawsuits pending statewide in time.

Commercial Division Rule 11: This rule pertains to discovery. In a new preamble, the The Chief Administrative Judge of the Courts acknowledged that discovery is one of the “most expensive, time-consuming” aspects of litigation. Thus, the Commercial Division court may now require a party with claims or counterclaims to provide a document detailing the case issues before a preliminary conference. It may also require litigants to provide a document detailing cause of action elements and supporting facts needed. Further, the court may re-visit this process if it dismisses some, but not all, causes of action. Notably, descriptions will not be binding and will not limit pleadings.

Commercial Division Rule 19-a: This rule pertains to summary judgment motions and statements of material facts. The court is now requesting a party responding to a summary judgment motion to recite the movant’s statement of facts and respond to each paragraph. Upon request, a movant will be required to promptly provide the respondent with a copy of the statement of facts in a word processing application.

These rules offer several takeaways. First, it is important to consider Civil Practice Law and Rules § 3101 as it relates to the new documents the court may require. That provision provides that generally, parties shall fully disclose all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. Whether a category or piece of discovery is “material and necessary” is often a point of contention among litigants. Ideally, the court’s envisioned documents with elements and supporting facts will assist in discerning what discovery is material and necessary in a particular case depending on what a litigant must prove to recover.

Second, the amendments will not take effect without some prompting. Thus, it remains to be seen how, and if, a particular Commercial Division court will use the amended discovery rules. This is particularly so, as the case issues document would be due before a preliminary conference, which is one of the first times the court gets involved in litigation.

Third, requiring a respondent to directly address each of a movant’s claimed material facts should assist the court and all counsel with discerning what a dispute boils down to. Previously, a party opposing a summary judgment motion could simply provide a document enumerating responses without mention of what that party was responding to. In a world with many cases pending and many documents filed electronically, this new requirement will spare the court from tracking down a movant’s statement of material facts and comparing the responsive document. The issues should be nicely packaged for adjudication.

Finally, careful parties should be mindful of metadata risks associated with sending word processing documents as the court directs. Hidden text, edits, author information, and other metadata are subject to transmission without proper care and consideration.

Overall, these rules should assist in clarifying what exactly parties are litigating. By extension, the precision envisioned should help to save time and costs associated with discovery and litigation in general.

Read the Rule 11 and 19 amendments here and here, respectively.

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