In Top 'Form' – The NY Commercial Division's Continuous Efforts To Increase Efficiency And Reduce Litigation Costs

As outlined in previous posts, the New York Commercial Division seeks to be a forward-thinking forum that adopts rule changes aimed at increasing efficiency and decreasing litigant costs. In August, a revised Model Preliminary Conference Order form was adopted for optional use by Division judges, even though the previous Preliminary Conference Order form had been approved only two years ago. The need for a revised form highlights the rapid changes in Commercial Division rules and the Division's continuous efforts to stay up to date. The new form incorporates specific descriptions of many of the recently adopted rules and contains significant revisions to the sections governing pre-answer motion practice, document production, interrogatories, depositions, disclosure disputes, and e-discovery. This post discusses four of the more significant rule changes that are reflected in the new form.

Discovery Proportionality

Just as the revised federal rules incorporated a "proportionality standard" in Rule 26(b)(1) that went into effect towards the end of 2015, the preamble to the Rules of Practice for the Commercial Division was similarly amended in November 2015. The purpose of this amendment is to emphasize the importance of proportionality in the pursuit of discovery and the resolution of discovery disputes. Last year, the Commercial Division recognized that the cost of discovery was often disproportionate to the amount in dispute. The placement of proportionality in the preamble is no accident. Neither is its prime location on the revised Preliminary Conference form. The discovery section of the revised form quotes the preamble to the Rules of Practice and begins with a general admonition that parties should be "mindful of the need to conserve client resources, encourage proportionality in discovery, promote efficient resolution of matters, and increase respect for the integrity of the judicial process."

Limitations on Interrogatories and Depositions

At the beginning of 2014, there were virtually no limitations in the Commercial Division rules concerning interrogatories and depositions. In an effort to rein in the costs and time devoted to discovery, new rules were propagated to limit the number and scope of these discovery devices. Parties are now restricted to 25 interrogatories which, with limited exceptions, may only concern the identity of witnesses, the computation of damages, and the location and custody of documents and information...