The New York Supreme Court’s Commercial Division has developed a reputation as a forward-thinking forum at the state level for the resolution of complex business disputes. When possible, the Commercial Division promulgates rule changes to increase efficiency and lower litigant costs.
This post discusses two proposed changes to the Commercial Division Rules that were recently open to public comment: 1) an amendment concerning memorialization of rulings in disclosure conferences; and 2) an amendment regarding settlement conferences before a justice other than the justice assigned to hear the case.
Memorialization of Discovery Rulings:
Disclosure conferences conducted by non-judicial personal are a common and efficient means to resolve discovery disputes. To make these conferences even more effective, the Advisory Council has proposed the adoption of a new rule to require – if the parties’ request – that all issues resolved at such conferences be reduced to writing and “so ordered” by the presiding justice. Conferences held before a judge’s law clerk or other non-judicial personnel frequently result in the issuance of oral rulings. While these rulings often suffice, after-the-fact disputes about the precise rulings issued and their scope can, and frequently do, result in costly, protracted and unnecessary motion practice. The problems surrounding oral rulings are magnified when cases need to be transferred to another justice who is not steeped in the case history. Much of this would be avoided if the rulings were reduced to writing, as the proposed rule allows.
Both state and federal courts have frequently referred parties for settlement conferences before a judge other than the judge assigned to the case. The Advisory Council’s proposed rule would codify this practice in the Commercial Division Rules to encourage candid settlement negotiations between parties without risk of telegraphing weaknesses in a case to the presiding trial judge. It is based on the bifurcated responsibilities in federal courts between district judges and magistrate judges, which allow parties to readily obtain a settlement conference before the magistrate rather than the judge who will hear the case. The Advisory Council argues that this structure has proven advantageous in business litigation, and seeks similar options in the Commercial Division.
The proposed rule would read as follows:
Should counsel wish to proceed with a settlement conference before a justice other than the justice assigned to the case, counsel may jointly request that the assigned justice grant such a separate settlement conference. This request may be made at any time in the litigation. Such a request will be granted in the discretion of the justice assigned to the case upon finding that: (1) such a separate settlement conference would be beneficial to the parties and the court and would further the interests of justice; and (2) the justice who will conduct the conference has agreed to serve in that capacity.
If adopted, the Advisory Council’s proposed rule changes would promote efficiency, reduce costs, and encourage settlement. However, parties will need to be aware of these options and affirmatively request that these rules be applied.
Interested individuals can track the status of the proposed rule changes at www.nycourts.gov/RULES.