Acting within the context of the COVID-19 pandemic’s unique opportunity for permanent reform, the Administrative Board of Courts in New York, through the state’s Chief Administrative Judge Larry Marks and his Order of December 29, 2020, enacted new Uniform Rules in the Supreme and County courts that will permanently change discovery, motion practice, pre-trial procedures and other aspects of civil litigation in the state. Effective February 1, 2021, some of these changes will impact personal injury litigation in general, and products liability cases in particular.
The rule changes came about after three years of study and public comments, as well as review by working groups composed of judges and lawyers. They were adopted from New York’s specialized Commercial Division, which Judge Marks’s Order described as a “recognized leader” in court innovation with “unparalleled creativity and flexibility” in the development of court rules. Many of the rule changes mirror common practices in the federal courts that nonetheless had escaped New York’s sometimes archaic procedures – until now.
Here are some of the rule changes that are particularly noteworthy.
Interrogatories: The number of allowed interrogatories is 25, including sub-parts. Gone are the situations when one party could seemingly harass the other party with impunity by serving dozens of irrelevant and burdensome written questions during the discovery process.
Depositions: The maximum number of depositions taken by any one party is 10 – that’s still a lot – but each deposition is limited to seven hours per witness. Prior to this rule change, there was no specific time limit placed on depositions.
Objections to Document Requests: New York is now in line with Federal Rule No. 34, as amended several years ago, which did away with boilerplate objections to document demands. New York now requires the responding party to affirmatively state that the document production is being made as requested, or state “with reasonable particularity” the grounds for any objection to the production. Refusing to respond to all parts of a demand when only a part of it is objectionable will not be permitted; nor may documents be withheld without explanation as to why. Parties must verify in each response whether the production is complete or state that there are no documents in its possession that are responsive to the request. Other new provisions address Privilege Logs and Electronically Stored Information (ESI), the latter encouraging counsel to confer at the outset of discovery to discuss proportionality and other aspects of ESI.
Motion Practice: The new rules limit the length of motion papers to specified word counts. Oral argument may be conducted by “electronic means” – presumably by one of the videoconferencing platforms that have been used widely by the courts and practitioners during the pandemic. Oral arguments on motions will be scheduled in staggered fashion “to increase efficiency” and “decrease lawyers’ time waiting for a matter to be called.” Repeated adjournments of a motion’s return date are now limited. Motions for Summary Judgment now require a Statement of Undisputed Facts, as required by many federal courts around the country.
Court Appearances: This is one of this author’s favorite rule changes. No longer will the practitioner need to deal with an adversary who sends a “know-nothing” pinch-hitter to a routine court appearance. The “per diem” lawyer who has no idea what the underlying case is about, or who professes to have “no authority” to make even the most basic decision on a case, should stay away from New York’s courts. Counsel are required to “be familiar with the case” and be fully prepared and authorized to discuss and resolve the issues that are likely to come before the court. (Violations of this rule could be treated as a default or failure to appear.) In addition, court appearances, such as oral arguments on motions, may be conducted virtually upon request of any party.
Other Rule Changes: Much like federal practice, counsel are required to “meet and confer” before the case’s preliminary conference and before bringing a discovery motion. Alternative dispute resolution (ADR) before a judge other than the one assigned to the case is now encouraged. Strict adherence to discovery schedules is required.
The rule changes were designed to make case management and pretrial litigation more efficient and to limit personal appearances in court in order to reduce foot traffic. It remains to be seen, of course, how these rule changes actually are implemented in real practice. Strict compliance will not occur overnight as judges and lawyers, so ensconced in the old rules, will undoubtedly need time to break old habits and adapt to the new rules.
Meanwhile, defense practitioners should embrace the changes. While New York will no longer allow the defendant’s boilerplate objections to onerous document demands coming from the plaintiff’s side, often seen in products liability litigation, the new requirements outlined above for dealing with them generally follow existing Rule 34 of the Federal Rules of Civil Procedure. Therefore, defense lawyers in New York should already be familiar with the proper way to set forth compliant responses. In the meantime, the rule changes should serve to bring New York’s state court system into a more modern and streamlined form of practice. If nothing else, cases should move more efficiently. Strict adherence to discovery deadlines, as required by the new rules, will only help the defense side, as will the limit on the number of interrogatories and the length of depositions.