New York added several new rules in 2015. The Commercial Division implemented an Alternative Dispute Resolution (“ADR”) Program and added a new rule regarding depositions of corporate representatives. Outside of the Commercial Division, New York created redaction policies applicable to all filings in the Supreme and County Courts, and established a timeframe for responding to service via mail from outside New York State.
COMMERCIAL DIVISION CASES MAY BE SUBJECT TO ADR
In May 2015, New York’s Eighth Judicial District, which covers Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans and Wyoming counties, implemented the “Commercial Division Alternative Dispute Resolution Program,” an ADR program specifically tailored for the Commercial Division. Under the program, every action pending in the Eighth Judicial District’s Commercial Division will be assessed, prior to the preliminary conference, and thereafter as circumstances dictate, to determine whether the action is suitable for ADR. The ADR processes considered will include mediation, arbitration, settlement conferencing, summary jury trials and summary bench trials. The Court may direct the parties to engage in a non-binding ADR session, or the parties may consent to engage in ADR at any time after filing a request for judicial intervention.
The parties must select a “Neutral” from a roster of mediators and arbitrators maintained by the Eighth Judicial District. If the parties cannot agree on a Neutral, one will be selected for them. Neutrals will be paid their hourly rate, with the cost to be shared equally by the parties, unless otherwise agreed or directed by the Court. If the action is not resolved through ADR, litigation will resume.
The implementation of this program will greatly increase the use of ADR in the Commercial Division. Parties litigating within the Eighth Judicial District’s Commercial Division should be prepared to engage in ADR and familiarize themselves with the program’s protocols (available online) and the potential Neutrals.
COMMERCIAL DIVISION CORPORATE LITIGANTS MUST PROVIDE DEPONENTS WITH KNOWLEDGE
The Chief Administrative Judge of the Courts has adopted Commercial Division Rule 11-f, which became effective on December 1, 2015. 22 N.Y.C.R.R. § 202.70, Rule 11-f. Rule 11-f provides a streamlined procedure for deposing a representative of a corporation or other entity.
Under Rule 11-f, a party seeking to depose an entity may serve a deposition notice or subpoena that enumerates the matters upon which the entity is to be examined. If the notice or subpoena sets forth such matters for examination but does not also identify a specific officer, director, member, employee, or other individual to be deposed, the responding entity must designate one or more individuals who will testify. If the notice or subpoena does identify a specific individual deponent, the responding entity may either produce that individual or instead designate one or more alternatives. In either case, the individual(s) designated must testify about information known or reasonably available to the entity. The responding entity must designate its witnesses at least ten days prior to the scheduled deposition.
Importantly, the combined depositions of all the designated representatives count as a single deposition subject to a “cumulative presumptive durational limit” of seven hours. This time limit may be enlarged by agreement or court approval.
Rule 11-f aims to decrease the likelihood that a deponent produced by an entity will lack the appropriate knowledge or information sought by the deposing party. The new Rule will give commercial litigants in New York an efficient mechanism for prompting entities to provide meaningful, responsive testimony at depositions.
CONFIDENTIAL PERSONAL INFORMATION MUST BE REDACTED FROM ELECTRONIC FILINGS
Growing concerns about confidentiality have prompted the “Omission or Redaction of Confidential Personal Information” Rule, 22 N.Y.C.R.R. § 202.5(e)(1), which became mandatory last year. The redaction Rule applies to all filings in Supreme or County Court unless submitted within a matrimonial, mental hygiene or Surrogate’s Court proceeding.
Confidential Personal Information (“CPI”) requiring redaction includes tax ID numbers and social security numbers, except for the last four digits; an individual’s date of birth, except for the year; the full name of a minor; and financial account numbers (i.e., credit card accounts, bank accounts, insurance accounts), except for the last four digits.
The responsibility to redact lies with the filing party. A clerk will not reject documents that contain unredacted CPI. If documents with unredacted CPI are filed, the Court can order that the CPI be removed or that the filing party refile documents with proper redactions in place. In addition, an opposing party may motion the Court to order the removal of unredacted CPI. Although the Rule does not provide a penalty for non-compliance, a party could seek damages if CPI were revealed.
The redaction Rule applies to all CPI in a document, not just that of parties. This is especially relevant if attaching deposition transcripts, billing records or medical records that may contain the CPI of other persons and entities. When filing documents with unredacted CPI is unavoidable, the filing party may motion the Court to permit the unredacted documents. Of course, a party may waive the confidentiality of its own CPI without the Court’s permission.
LONGER RESPONSE TIME WHEN SERVED VIA OUT-OF-STATE MAIL
Prior to December 2015, service of papers pursuant to Civil Practice Law and Rules (CPLR) § 2103 was limited to mail within New York State. The old text added five days to the time period for responding to papers mailed within New York State.
The revised Rule, CPLR § 2103(b)(2), explicitly addresses papers mailed within the United States but from outside of New York State. To accommodate the presumably longer time required for mail to arrive from out-of-state, six days are added to the time period to respond to papers mailed from outside New York State. As a result, litigants responding to papers mailed from outside New York State will have one day longer to respond than those responding to papers mailed from within New York State.