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posted 9 years ago
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.
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