University of Denver

New York Task Force on Commercial Litigation in the 21st Century

Former New York Chief Judge Jonathan Lippman formed the Task Force on Commercial Litigation in the 21st Century to explore and recommend reforms to enhance the already world-class status of the Commercial Division of the New York Supreme Court. Recognizing the increased pressures and demands on the Division, the Chief Judge wanted to ensure the quality of the Division going forward. The Task Force submitted its final report in June 2012. The Task Force’s key recommendations include 1) endorsing the Chief Judge’s legislative proposal to establish a new class of Court of Claims judges, appointed by the Governor and assigned to the Commercial Division; 2) implementing several measures to provide additional support to the Division, including additional law clerks and the creation of a panel of “Special Masters”; 3) implementing procedural reforms to facilitate prompt and cost-effective resolution of cases; 4) implementing initiatives to facilitate early case resolution and arbitration; and 5) appointing a statewide Advisory Council to review the recommendations and guide implementation.

In 2013, Chief Judge Lippman established a permanent Commercial Division Advisory Council, as recommended by the Task Force. The Council is working on implementing the recommendations from the Task Force, and several measures are in the beginning stages of implementation. In December 2013, the Office of Court Administration released a series of proposals based on the work of the Advisory Council, including an 18-month pilot mandatory mediation program in New York County, an accelerated adjudication procedure in the Commercial Division, a limit to the scope and number of interrogatories, and an enhanced preliminary conference form.

Some of these proposals are already in place, such as the accelerated adjudication procedures that went into effect on June 2, 2014. Additionally, the mandatory mediation pilot project went into effect on July 28, 2014, and concluded on February 1, 2016. The court found that the mediation pilot was “positive and instructive”; the court also concluded that Commercial Division Justices should consider every case as a potential candidate for mediation. Additionally, the Court published a revised New Model Preliminary Conference Order form in August of 2016 that prompts parties for detailed information on pre-answer motions, factual and legal issues in the case, and plans for disclosure and discovery, including disputes. Other proposals are awaiting formal adoption.

New rules of discovery have also been adopted for the Commercial Division. Under these provisions, interrogatories are limited to 25 in number and may only cover limited topics, unless the court otherwise orders. Parties also must meet and confer at the outset of and throughout a case to discuss privilege logs. The rules codify the Division’s preference that parties use categorical designations to reduce the time and cost associated with preparing the logs. The new Rule 11-D Limitations on Depositions establishes a presumptive limit of ten depositions for each side and a presumptive limit for the duration of depositions of seven hours per witness. The Rule also establishes that the deposition of a corporation or other legal entity shall be treated as a single deposition, even if more than one person testifies on behalf of the entity. The Advisory Council is continuing to work on implementation of the recommendations set forth in the Task Force report, and additional proposals are expected.

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