The choice of the forum for the resolution of business disputes arises at three times: when drafting a contract with an arbitration or forum selection clause, when deciding where to ﬁle a lawsuit, and when responding to a complaint that has already been ﬁled (i.e., whether to remove to federal court if ﬁled in state court or move to transfer to another district if ﬁled in federal court). The Commercial Division of the Supreme Court of the State of New York has recently adopted an extensive revision and modernization of its rules (much of which is beyond the scope of this note), and certain of those revisions present a new choice for potential or actual litigants: an accelerated, streamlined, non-jury adjudication within less than a year. The parties to any contract can agree at the time of contracting to adopt these procedures in the event of a dispute or the parties to a ﬁled litigation can so agree. Participation in this new program is voluntary and no party can be forced to accept it.
If the parties agree to be bound by the accelerated adjudication procedures, they are deemed by the Court to have irrevocably waived the following: (1) any objections based on lack of personal jurisdiction or the doctrine of forum non conveniens; (2) the right to trial by jury; (3) the right to recover punitive or exemplary damages; (4) the right to any interlocutory appeal; and (5) the right to discovery, except to such discovery as the parties might otherwise agree or as follows: a limit of seven interrogatories, ﬁve requests to admit and seven depositions, with no deposition to exceed seven hours in length. Documents requested by the parties must be limited to those relevant to a claim or defense in the action and restricted by time frame, subject matter and persons or entities to which the requests relate.
Electronic discovery, which drives much of the cost of litigation today, is also subject to certain limitations and, where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, the court can deny the request or order the requesting party to advance the reasonable cost of production to the other side.
Parties utilizing the accelerated adjudication procedures agree to be ready for trial nine months from the date of ﬁling of the Request for Judicial Intervention, which can happen any time after the ﬁling of the complaint. All pretrial proceedings, including discovery, pre-trial motions, and any mandatory mediation are subject to the nine- month limit.
The expenditure of time, money and valuable employee resources in litigation is widely discussed and justiﬁably criticized. Arbitration, in general, has not proven to be signiﬁcantly more efﬁcient or to provide more satisfying outcomes. This new “rocket docket” may prove to be a preferable third way. But it is new and as yet untested.