In an effort to streamline litigation in the Commercial Division, the Commercial Division Advisory Council has continued with its revisions to the Commercial Division Rules by recently implementing one new rule encouraging early adjudication on threshold issues, and revising another rule to approve the use of technology-assisted review in discovery.
The new rule, Rule 9-a, which was implemented just last week, explicitly encourages parties to request that Commercial Division Justices employ a pre-trial evidentiary hearing or immediate trial on material factual issues. While these streamlined procedures may be used in connection with any dispositive motions, the Commercial Division Advisory Counsel specifically noted that such procedures may be useful in addressing preliminary dispositive issues, such as statute of limitations or jurisdictional defenses. The new rule should help practitioners before the Commercial Division obtain a prompt preliminary adjudication of their matters, particularly with respect to defendants confronted with untimely or jurisdictionally defective claims.
Additionally, on July 19, 2018, the Commercial Division adopted a new subdivision (f) of Rule 11-e. That addition to Rule 11-e encourages the parties “to use the most efficient means to review documents,” which “may include technology-assisted review, including predicative coding, in appropriate cases.” This explicit encouragement of the use of technology-assisted review in the court rules, places the Commercial Division at the forefront of complex litigation courts. By adopting this new rule, the New York Commercial Division becomes one of the first courts to explicitly approve of the use of technology-assisted review in its court rules.
In addition to these two recent changes, the Commercial Division is also considering two additional amendments to its rules. The first proposed amendment would substitute the present page limitations with respect to briefs in the Commercial Division, which currently is 25 pages for opening and opposition briefs and 15 pages for replies, with word limitations of 7,000 words and 4,200 words respectively. The second proposed amendment encourages parties to select a mutually acceptable mediator in connection with mediation in the Commercial Division. That amendment is subject to public comment through August 20, 2018.
The recent and proposed changes to the Commercial Division Rules follow in the wake of several other rules updates that were implemented on January 1, 2018. The first of those changes updated Rule 10 and Rule 11 by requiring counsel to submit a statement at the preliminary conference, as well as each subsequent compliance or status conference, certifying that they have discussed alternative dispute resolution options with their clients. The second rule change implemented a special docket for complex business disputes with at least $50 million at stake. The third rule change amended Rule 202.70(d) to reference a sample clause for parties to select the Commercial Division as the method for resolving any dispute, provided the dispute meets the other jurisdictional requirements of the Commercial Division. Finally, the fourth and fifth rule changes involved updating the model status conference and compliance conference stipulation and order forms to assist in efficient resolution and management of discovery and case management disputes at the commencement of each case.
Each of these changes, and particularly the recent amendments concerning early adjudication and technology-assisted review, are consistent with the Commercial Division’s goal of providing a forum that allows clients to litigate their disputes in an efficient, expedient and predictable way. These changes should continue to encourage practitioners to promote the Commercial Division as a premier venue for adjudicating high-stakes commercial disputes.