The New York Commercial Division is poised to continue its rules revamp, with six new rules proposals announced since October. While these proposals would not alter practice before the Commercial Division in the same manner that the 2014 and 2015 updates did, they do raise important practice considerations for parties and counsel who are currently, or expect to be, engaged in practice before the Commercial Division.
The Office of Court Administration is currently accepting public comments on most of the proposed rules described below, which will likely go into effect later this year or early next year.
Consultation Regarding Expert Testimony
On October 27, 2016 the Office of Court Administration announced a proposed new rule designed to make expert testimony at trial more efficient and less technical. The new rule would allow the court to require parties to consult in good faith prior to the pre-trial conference regarding the expected testimony of their respective expert witnesses at trial. If the parties identify any areas where the experts’ expected testimony will not be in dispute, the court may direct the parties to stipulate that the parties are in agreement with regard to one or more of the opinions being offered.
Model Language for Forum Selection
On October 24, 2016 the Office of Court Administration announced a proposal to amend Appendix C of the Commercial Division Rules to include a sample choice of forum clause. The sample clause is a mandatory forum selection clause, and it is designed to give parties a convenient means of selecting New York’s Commercial Division as their sole choice of forum and to invoke the Commercial Division’s jurisdiction over all parties and claims.
Estimated Length of Trial
On October 18, 2016 the Office of Court Administration announced a proposal to amend Rule 26 of the Commercial Division Rules to specifically allow the Court to require that parties furnish the court with a realistic estimate of the length of a trial. The amendment also would allow the court to request that each party provide more detail in their estimates, including the total hours for direct, cross, and redirect examinations, and for argument during the trial. The court would be allowed, under the proposed amendment, to rule on the total number of permitted hours for each party. The intent of the proposed amendment is to make clear the inherent power of the court to set trial time limitations.
Sealing of Court Records
On October 12, 2016 the Office of Court Administration announced a proposal to add a new rule to the Commercial Division Rules that is intended to address the concern that the public disclosure of business data has adversely and unnecessarily impacted the Court’s attractiveness as a commercial litigation forum. While the court already has the ability to seal court records for “good cause,” the proposed new Commercial Division Rule, 11-h, explicitly clarifies that “good cause” includes the protection of proprietary or commercially sensitive information, which is broadly defined to include trade secrets, current or future business strategies, or information likely to be detrimental to the business of a party or third-party (such as price terms). The rule would apply to all documents and records of any nature that are publicly filed with the clerk in connection with an action.
On October 6, 2016 the Office of Court Administration announced a proposal to amend Rule 6 of the Commercial Division Rules, which governs the form of papers. The proposed amendment would allow the court to require parties to file electronic documents containing hyperlinks to cited authorities such as cases, statutes, rules, regulations, other e-filed documents, or other portions of the document. Underlying hyperlinked documents would still be required to be separately filed with the court, and hyperlinks would not replace citations or other references in accordance with existing applicable rules.
Temporary Restraining Orders
On November 4, 2016 the Office of Court Administration announced a proposal to amend Rule 20 of the Commercial Division Rules, which governs the issuance of temporary restraining orders. The proposal would require that the party applying for the temporary restraining order provide opposing parties with advance copies of all papers supporting the application. Currently, the rule only requires “notice” to the opposing party, though it is not uncommon for the Commercial Division bar to include copies of the papers with the notice provided to the other side. The proposed amendment also clarifies that a temporary restraining order will not be given ex parte unless the moving party will be significantly prejudiced by providing notice.
Direct Testimony by Affidavit
In addition to the six proposed amendments and additions to the Commercial Division Rules, Rule 32-a went into effect on October 17, 2016. The new rule, allows Commercial Division Justices to require that direct testimony in a non-jury trial or evidentiary hearing be submitted by affidavit, so long as the witness is under the control of the party offering the testimony. Submitting direct testimony by affidavit does not affect any party’s right to cross and re-direct examinations.
*James Salem is a law clerk in Sheppard Mullin’s New York office.