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United States of America > New York > Litigation Dispute resolution > Advisory > Article > Five Changes You Need to Know About to Practice in New York’s Commercial Division

Article: Five Changes You Need to Know About to Practice in New York’s Commercial Division

As part of ongoing efforts to revamp New York’s Commercial Division, a slew of new rules and guidelines recently took effect on September 2, 2014. Below are summaries of five new rules and guidelines that practitioners should know.

1. Getting into the Commercial Division

An amendment to 22 NYCRR § 202.70(d) encourages the early assignment of eligible cases to the Commercial Division. The new rule requires counsel to decide within 90 days of service of the complaint whether to request that the case be assigned to the Commercial Division by filing a request for judicial intervention (RJI). Failure to file the RJI will preclude the party from later seeking a transfer to the Commercial Division, except by written application to the Administrative Judge for “good cause.” If an RJI is filed within the 90 day period that does not request assignment to the Commercial Division, any other party has 10 days after receipt of the RJI to request a transfer to the Commercial Division by letter application.

2. Mandatory Early Settlement Discussions

An amendment to 22 NYCRR § 202.70(g) adds settlement-related disclosure to the list of topics that counsel are required to discuss prior to the preliminary conference. Under the new rule, counsel are required to discuss “any voluntary and informal exchange of information that the parties agree would help aid early settlement of the case.”

3. Privilege Logs

If the case proceeds to discovery, a new version of Rule 11-b of 22 NYCRR § 202.70(g) establishes a preference for the use of categorical designations as opposed to document-by-document logging on privilege logs. Parties are required to discuss early on whether categorical designations are possible. If the parties agree to use a categorical approach, for each category of documents, the producing party must provide a certification that sets forth with specificity the facts that support the privileged or protected status of the information included within the category. The certification must also describe the steps taken to identify the categorized documents, including whether each document was reviewed or whether a sampling method was employed. If the requesting party refuses to agree to categorical designations, the producing party may, upon a showing of good cause, apply to the court for an allocation of costs, including attorneys’ fees, that it incurred preparing a document-by-document privilege log.

Rule 11-b also contains helpful instructions on logging e-mail chains in a document-by-document privilege log. Specifically, each uninterrupted e-mail chain should be a single entry on the log and the description for each entry should include the following information: (i) an indication that the e-mails represent an uninterrupted dialogue; (ii) the beginning and ending dates and time (as reflected in the e-mails) of the dialogue; (iii) the number of e-mails in the dialogue; and (iv) the names of all authors and recipients, including sufficient identifying information about each person (i.e., name of employer, job title, role in case) to permit the receiving party to evaluate the claim of privilege.

4. Non-Party Electronic Discovery

New guidelines set forth in Appendix A to Rule 11-c contain practical suggestions to rein in the costs of electronic discovery sought from non-parties. The guidelines encourage early discussions to assess the potential costs and burdens to be imposed on non-parties in responding to electronic discovery requests. The party requesting discovery should “reasonably limit its discovery requests” and consider the following proportionality factors: (a) the importance of the issues at stake in the litigation; (b) the amount in controversy; (c) the expected importance of the requested electronically stored information (ESI); (d) the availability of the ESI from another source, including a party; (e) the accessibility of the ESI, as defined in applicable case law; and (f) the expected burden and cost to the non-party. Not surprisingly, the guidelines encourage the requesting party and non-party to work together to resolve any disputes through informal mechanisms and counsels that motion practice should be considered only as a last resort. The effect of these guidelines remains to be seen as they are not mandatory and are not intended to modify existing case law or replace the applicable court rules.

5. Staggered Court Appearances

Finally, in a rule that will hopefully lead to greater efficiency and less time spent waiting in (and around) the courtroom, Rule 34 provides that oral arguments on motions will be assigned specific time slots. The amount of time allotted for each argument is up to the Court. Each attorney who receives notice from the Court of an appearance on a specific date and time is required to notify all other parties by e-mail of the scheduled appearance. A request to adjourn an oral argument must be electronically filed no later than 48 hours before the hearing.

Article by Charles E. "Trip" Dorkey III and Rebecca Tingey

Last Update: 2015-Mar-01 Charles E. “Trip” Dorkey III - Dentons
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Charles E. “Trip” Dorkey III
Law Firm: Dentons
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