Amendments to Uniform Rules

Amendments to Uniform Rules

3.26.2021

By David Ferstendig

The following article is part 2 of a two-part article; for part 1 click here.

We continue our analysis of the amendments to the Uniform Rules for the Trial Courts.

Please Follow the Extensive ESI Guidelines. Efficient Discovery of ESI from Nonparty. New § 202.20-j: Entitled “Electronically stored information.” This section provides that parties and nonparties are to follow the ESI guidelines in the Appendix.

The Guidelines state that they are not intended to modify governing case law or replace the Commercial Division Rules, the Uniform Rules, the CPLR or “any other applicable rules or regulations pertaining to the New York State Unified Court System.” In fact, the Guidelines are to be construed in a manner consistent with them. The purpose of the Guidelines is to provide for the efficient discovery of ESI from nonparties, to assess early the potential costs and burdens on nonparties “in preserving, retrieving, reviewing and producing ESI given the nature of the litigation and the amount in controversy,” to identify where the requesting party will have to defray the nonparty’s ESI costs, and to encourage informal resolution of any ESI disputes without court intervention. The parties should cite to the Guidelines in their ESI discovery requests. The Guidelines provide that a party seeking ESI discovery should engage in early discussions (“as early as permissible in an action”) with the nonparty regarding ESI and is encouraged to discuss the implementation of a litigation hold.

ESI discovery requests to a nonparty are to be limited, taking into consideration certain “proportionality factors,” such as the importance of the issues at stake, the amount in controversy, the anticipated importance of the ESI requested, its availability from other sources including a party, the ESI’s “accessibility” (as defined by case law), and the nonparty’s burden and costs.

ESI discovery disputes should be resolved informally without court intervention, initiating motion practice only as a “last resort.” The requesting party and nonparty should meet and confer as to the scope of the ESI discovery, the form and timing of production, minimizing the costs and burdens (including claw-back issues and the use of advanced analysis screening software) and the requesting party’s defrayal of the nonparty’s production expenses. The proportionality factors noted above should be considered. If an agreement cannot be reached, the party and nonparty “are encouraged” to avail themselves “of the Court System’s resources,” including requesting a telephone conference with a law clerk or special referee or the appointment of an unpaid mediator. The requesting party is to defray the nonparty’s reasonable production costs, pursuant to CPLR 3111 and 3122(d).

Interrogatories Limited to 25. New § 202.20: Unless otherwise ordered by the court, interrogatories are limited to 25, including subparts, and the limit applies to consolidated actions.

Privilege Logs, Meet and Confer. New § 202.20-a: Entitled “Privilege Logs.” The parties should meet and confer at the beginning of the case “and from time to time thereafter” to discuss the following issues: the scope of the privilege review; the amount of information to be set forth in the privilege log; the use of categories to reduce document-by-document logging; whether categories of information can be excluded; and any other relevant to privilege review issues, including the entry of an appropriate non-waiver order. “To the extent that the collection process and parameters are disclosed to the other parties and those parties do not object, that fact may be relevant to the Court when addressing later discovery disputes.” 202.20-a(a). The parties’ agreements and protocols are to be memorialized in a court order. If the parties cannot enter into an agreement or protocol, the court is to issue its own order covering the issues noted in (a) above, and the allocation of costs and expenses between the parties. 202.20-a(b).

The 10/7 Rule for Depositions. New § 202.20-b: Entitled “Limitations on Depositions.” Unless stipulated by the parties or court ordered, depositions taken by the plaintiffs, defendants, or third-party defendants are limited to 10 and seven hours per deponent. Nevertheless, the propriety of and timing for non-party depositions are subject to any restrictions imposed by applicable law. Moreover:

• For the purposes of both the number and duration of the depositions, the deposition of an entity through one or more representatives is to be treated as a single deposition, even if more than one person is designated to testify on behalf of the entity. Nevertheless, “the cumulative presumptive durational limit may be enlarged by agreement of the parties or upon application for leave of Court, which shall be freely granted.”
• A deposition of an officer, director, principal, or employee who is also a fact witness (as opposed to a CPLR 3106(d) entity representative) constitutes a separate deposition.
• ` The court can alter the above deposition limits (number and duration) for “good cause shown.”
• Nothing in this section is to be construed to alter a party’s right to seek appropriate relief under the CPLR or other applicable law.

Produce Documents or Object with Particularity. New § 202.20-c: Entitled “Requests for Documents.” A CPLR 3122(a) document response must state either that the documents will be provided as requested or the grounds for any objection, with reasonable particularity. 202.20-c(a). Each response must state (i) whether the objection is to all or part of the request, (ii) whether the documents or categories of documents will be withheld, and if so, which objections apply, and (iii) how the responding party intends to limit the document production. 202.20-c(b). Each response must verify whether responsive documents in its possession, custody or control are complete or that there are no responsive documents to the request (as propounded or modified) in its possession, custody or control. 202.20-c(c). A party’s obligation to supplement its disclosure under CPLR 3101(h) remains unaffected. 202.20-c(d). “The parties are encouraged to use the most efficient means to review documents, including electronically stored information (‘ESI’), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production.” 202.20-c(e). Absent good cause, a party cannot use at trial or otherwise any responsive document not produced, for which no objection was made, or if an objection was made, it was overruled by the court. 202.20-c(f).

Deposing Entities on Specific Matters. New § 202.20-d: Entitled “Depositions of Entities: Identification of Matters.” It provides for a mechanism to identify specific matters on which to examine an entity at its deposition. An entity is defined as “a corporation, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.” 202.20-d(a). The notice or subpoena can set forth, with reasonable particularity, the matters upon which the person is to be examined. 202.20-d(b). If the notice or subpoena does not identify a particular person, but sets forth the matters for examination, then at least 10 days before the deposition, the entity must designate and identify the individual, with knowledge, including the name and title or description, who consents to testify; and, if multiple persons are designated, the matters about which each individual will testify. 202.20-d(c). If the notice or subpoena names a specific individual (including the individual’s identity, description or title) and includes the matters for examination, the entity is required to produce the designated person, unless it notifies the requesting party at least 10 days before the deposition that it will produce another identified individual or other individuals and provides the matters on which each individual will testify. 202.20-d(d). The subpoena is to advise a non-party entity of its duty to provide the designations. 202.20-d(e). The designated individuals must testify about information known or reasonably available to the entity. 202.20-d(f). Testimony provided pursuant to this rule can be used against the entity as per CPLR 3117(a)(2) and applicable evidentiary rules. 202.20-d(g). The rule does not preclude a deposition by any other procedure the CPLR permits. 202.20-d(h).

Strict Compliance with Discovery Deadlines. New § 202.20-e: Entitled “Adherence to Discovery Schedule.” Parties must “strictly” comply with discovery deadlines in a scheduling order. An application for an extension of a deadline must be made “as soon as practicable” and before that deadline has expired. Failure to comply with a scheduling order can result in sanctions or other CPLR 3126 relief. 202.20-e(a). Where a party seeks documents as a condition precedent to a party’s deposition, but the documents are not produced by the date fixed, the requesting party can ask the court to preclude the non-producing party from introducing at trial the demanded documents. 202.20-e(b). Significantly, Commercial Division Rule 13, upon which this new rule is based, contains a subdivision (c) providing for expansive disclosure of testifying experts, including a set deadline for identifying experts, reports and depositions. This is a bridge too far to cross in view of the plaintiffs’ bar’s adamant opposition to the deposition of experts (and deadlines) in personal injury cases.

Resolving Discovery Disputes Informally. New § 202.20-f: Entitled “Disclosure Disputes.” “To the maximum extent possible,” parties are to resolve discovery disputes through informal procedures (e.g., conferences), rather than motion practice. 202.20-f(a). Prior to contacting the court and absent exigent circumstances, counsel are required to consult in good faith, in person or via a phone conference, to resolve discovery disputes. If a discovery dispute cannot be resolved, a discovery motion requires the submission of an affidavit/affirmation of good faith, providing the date and time of the conference, the persons participating, and the conference’s duration. An unreasonable failure or refusal by counsel to participate in a conference can relieve the requesting party of its obligation to comply with this paragraph and can result in sanctions under 22 NYCRR Part 130. In such an instance, the moving party must include in its affirmation/affidavit details of the moving party’s efforts to seek a conference and the responses received. 202.20-f(b). Counsel’s failure to comply with this rule can result in the discovery motion being denied without prejudice to renewal once compliance is achieved or the motion can be held in abeyance until the court’s informal resolution procedures are conducted. 202.20-f(c). Note that the “affirmation of good faith” has been around for a long time and is already contained and discussed in § 202.7(a), (b), (c) and (d).

Disclosure Conferences by Non-judicial Personnel. New § 202.20-g: Entitled “Rulings at Disclosure Conferences.” The rule prescribes procedures governing disclosure conferences conducted by non-judicial personnel. Specifically, it requires that, prior to the conference’s conclusion, at a party’s request:

• all resolutions be dictated into the record, and the transcript submitted to the court to be so-ordered or the court can enter an order incorporating the resolutions;
• the parties submit for the presiding judge’s approval and signature, a writing setting forth those resolutions; or
• the parties can prepare an outline of the material terms of the resolutions and, within one business day of the conference, jointly submit a stipulated proposed order, memorializing the resolutions. If the parties cannot agree on the form of the proposed order, they are to advise the court so that the court can direct an alternative course of action.

Pretrial Memoranda, Exhibits, Binders and Jury Instructions. New § 202.20-h: Entitled “Pre-Trial Memoranda, Exhibit Book and Requests for Jury Instructions.” At the pre-trial conference or at another time set by the court, each side is to submit a pre-trial memorandum, no longer than 25 pages (and serve it pursuant to CPLR 2103(e)). No memorandum in response is permitted. 202.20-h(a). On the first day of trial, or at another time set by the court, counsel is required to submit an indexed binder, notebook, or electronic equivalent of trial exhibits for the court’s use, a copy for each attorney on trial, and originals in a similar binder or notebook for the witnesses. Plaintiff’s exhibits are to be numerically tabbed; defendants’ alphabetically. 202.20-h(b). In a jury trial, on the first day of trial or at another time set by the court, counsel must provide case-specific requests to charge and proposed jury interrogatories. A charge from the New York Pattern Jury Instructions (PJI) can be referenced by its PJI number. Submissions should be by hard copy and electronically, as directed by the court. 202.20-h(c). With respect to trial memoranda, there is some overlap between this rule and § 202.35(c).

Nonjury Trial Direct Testimony by Affidavit. New § 202.20-i: Entitled “Direct Testimony by Affidavit.” In a non-jury trial or evidentiary hearing, the court can require that direct testimony of a party’s own witness be submitted in affidavit form, provided that (a) the court cannot require submission of a direct testimony affidavit from a witness not under the control of the party offering the testimony, and (b) the opposing party can object to statements in the affidavit and the court is to rule on those objections as if the statements had been made orally in open court. Where an objection is sustained, the court can direct that that portion be stricken. The submission of a direct testimony affidavit does not affect any rights of cross-examination or re-direct examination of the witness.

Staggered Court Appearances, Do Not Come All at Once. New § 202.23: Entitled “Staggered Court Appearances.” This rule was promulgated to increase the court’s efficiency, to reduce attorneys’ time waiting for a matter to be called and to streamline the litigation process. The preamble to the rule stresses that to be successful, litigants, their counsel and the court need to cooperate and adhere to the rules. The rule provides for staggered court appearances by which each court appearance for oral argument on a motion will be assigned either a specific time or a time interval, solely in the court’s discretion. 202.23(a). To permit the court to address all matters and to avoid the appearance of holding ex parte communications, even parties who believe that they may not be directly involved in the specific matter before the court must nevertheless appear on the assigned date and time, unless the court expressly excuses them. 202.23(b). Attorneys who receive notification of a specific date and time for an appearance are required to notify all other parties via e-mail (to take into account the possible failure of the court notification system). Parties are to exchange e-mail addresses when the action is commenced and are to keep those e-mail addresses current. 202.23(c). Requests for adjournments are to be in writing to the court and all parties and transmitted “in such manner as the court may direct, so as to be received no later than 48 hours before the hearing” and are to advise whether the other parties consent. 202.23(d).

Good Faith Consultation Before Preliminary and Compliance Conferences. New § 202.11: Entitled “Consultation Prior to Preliminary and Compliance Conferences.” Before a preliminary or compliance conference, the parties’ counsel are to consult, and to make a good faith effort to reach an agreement prior to the conference on the following matters:

• Resolution of the case (in whole, or in part)
• Discovery, including ESI, and any other issues to be discussed at the conference
• The use of alternative dispute resolution
• The voluntary and informal exchange of information that the parties agree might help early settlement

Settlement Conferences, Pretrial Conferences and Undisputed Expert Testimony. § 202.26: The entire existing rule (subparagraphs a-g) was replaced with three subdivisions and retitled “Settlement and Pretrial Conferences.” Subsection (a), entitled “Settlement Conference,” provides that a court can schedule a settlement conference when a case is certified as ready for trial or after the discovery cutoff. Attendance is required for counsel and the parties “who are expected to be fully prepared to discuss the settlement of the matter.” Subsection (b), entitled “Pre-Trial Conference,” requires that before trial, counsel is to confer in a good faith effort to identify matters not in contention, resolve disputed questions without court intervention, and discuss settlement. Where such a conference is scheduled, or otherwise before opening statements, counsel must be prepared to discuss disagreements between the parties and settlement. The court can require the parties to prepare a written stipulation of undisputed facts. Finally, subsection (c) is entitled “Consultation Regarding Expert Testimony.” It provides that before and during trial, the court can direct that counsel consult in good faith to identify aspects of their experts’ anticipated testimony not in dispute. The court can further direct that any agreements reached be reduced to a written stipulation.

Please Tell the Court If the Case Is Over. § 202.28: Entitled “Discontinuance of Civil Actions and Notice to the Court.” The amendment totally replaces the existing rule. The prior rule talked about filing stipulations within 20 days of discontinuance. The amended version, subsection (a), provides that where an action is settled, discontinued, or otherwise disposed of, “counsel” is to immediately advise the assigned judge or court part by submitting a copy of the stipulation or a letter to the part clerk together with notice to the assigned judge’s chambers by phone or email. The subsection notes that the notification above is in addition to the filing of the stipulation with the county clerk. 202.28(a). Note that CPLR 3217(d) provides that notices and stipulations of discontinuance are to be filed by the defendant with the county clerk. Subsection (b) of § 202.28 now provides that counsel and self-represented litigants are under a continuing obligation to notify the assigned judge in writing “as promptly as possible” if an action is settled, discontinued or otherwise disposed of, the case or motion has become wholly or partially moot, or if a party has died or filed a bankruptcy petition.

Settlement Conference Before Another Judge. New § 202.29: Entitled “Settlement Conference Before a Justice Other Than the Justice Assigned to the Case.” Counsel can jointly request at any time during the action that they be permitted to proceed with a settlement conference before another justice or judge. The request is to be made to the assigned justice, who in his or her discretion can grant the request upon finding that “a separate settlement conference would be beneficial to the parties and the court and would further the interests of justice.” When granted, the assigned judge is to make arrangements for the designation of a “settlement judge.”

Can We Have Agreement on Exhibits at Trial? New § 202.34: Entitled “Pre-Marking of Exhibits.” Prior to trial, counsel must consult in a good faith attempt to agree on exhibits to be offered into evidence without objection. Before the trial begins, each side is to mark its non-objectionable exhibits, subject to court approval. Those exhibits to which there is no consent are to be marked for identification only. Counsel should consult the part clerk for guidance if the trial exhibits are voluminous. At the earliest possible time, the court is to rule on objections to contested exhibits. Exhibits to be used only for credibility or rebuttal purposes but not previously demanded do not have to be pre-marked.

Witness Lists, Order of Witnesses, and Length of Testimony. New § 202.37: Entitled “Scheduling Witnesses.” When a trial commences or at another time directed by the court, each party is to provide the court and opposing counsel with a written list identifying witnesses intended to be called at trial, and the order and length of their testimony. The time estimates for testimony are advisory, and the court can permit further testimony exceeding the estimate. Separately, counsel is to provide to the court only a list of rebuttal or credibility witnesses. For good cause shown, and in the absence of substantial prejudice, a court can allow a party to call a witness not previously identified.

David L. Ferstendig, currently a member of Law Offices of David L. Ferstendig, New York, was a founding officer of the law firm Breindel & Ferstendig. He litigates a spectrum of civil and commercial matters, including breach of contract, products liability, toxic tort, insurance and reinsurance coverage, jewelers’ block, political risk, environmental liability, trade secret, and professional indemnity. He is also an adjunct law professor at Brooklyn Law School and New York Law School. Ferstandig is a member and past Chair of the CPLR Committee for NYSBA and is editor of the New York State Law Digest, where this article also appears.