Recent Uniform Rule amendments are intended to bring Commercial Division Rules more broadly into general civil practice before the courts of New York State. While creating efficiencies, these also include potential traps for the unwary, such as new motion and discovery requirements. The Chief Administrative Judge December 29, 2000 Administrative Order implementing these changes, recognizes the Commercial Division as an “efficient, sophisticated, up-to-date court, dealing with challenging commercial cases, and has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases”. In this posting, we provide certain highlights of these Uniform Rule amendments.

Counsel Appearances: Current Rule 202.1 is amended to provide that appearing counsel must be familiar with their case and fully prepared and authorized to discuss and resolve issues regarding the appearance. Failure to comply may be treated as a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130.2.1. While counsel should always be prepared for court appearances, attorneys should take heed of potential consequences of non-compliance.

Adherence to discovery schedule: New Rule 202.20-e requires parties to strictly comply with discovery obligations by dates set in case scheduling orders. Non-compliance may result in sanctions under CPLR § 3126. This rule strengthens court scheduling orders, straightforward discovery deadlines, relief for adversary noncompliance.

Interrogatories: New Rule 202.20 limits interrogatories to 25, including subparts, unless the court orders otherwise.

Depositions: Under new Rule 202.20-b, depositions are limited to seven hours per deponent, which limit the court may adjust for good cause shown. Rule 202.20-d creates additional requirements for corporate entity depositions. These changes further align more general New York civil practice with the New York Commercial Division and Federal Rules of Civil Procedure.

Disclosure disputes: New Rule 202.20-f, provides that to the “maximum extent possible”, discovery disputes should be resolved through informal procedures, such as conferences, rather than motion practice, Absent exigent circumstances, counsel must consult in good faith either by “in-person or telephonic conference” in an effort to resolve disclosure disputes before contacting the Court. In the event a discovery dispute cannot be resolved other than through motion practice, the discovery motion shall be supported by an affidavit or affirmation from counsel attesting o (i) the date(s), time(s), persons participating, and duration of the conference(s) or (ii) if the moving party was unable to conduct a conference due to the unreasonable failure or refusal of an adverse party to participate, then the moving party shall, in an affidavit or affirmation, detail the efforts made to obtain such a conference and set forth the responses received. Unreasonable failure or refusal to participate in a conference requested by another party may (i) relieve the requesting party of the obligation to comply with this paragraph and (ii) be result in sanctions pursuant to Part 130. Prior practice of limiting pre-motion communications to writing are no longer sufficient.

Motion Procedure: Under Rule 202.8, the exact relief sought shall be specified in the (i) notice of motion or order to show cause, and (ii) concluding section of the memorandum of law. Counsel must submit as part of the motion papers, copies of all pleadings and other documents required by the CPLR “and as necessary for an informed decision on the motion (especially on motions pursuant to CPLR 3211 and 3212).” Tabs should be used for exhibits to hard or working copies of motion papers. Copies must be legible. If an exhibit is voluminous and only discrete portions are relevant to the motion, counsel shall attach excerpts and submit the full exhibit separately. Foreign language documents must be translated as required by CPLR 2101(b). When reliance is placed on a decision or other authority not readily available to the court, a copy of the case or of pertinent portions of the authority shall be submitted with the motion papers, “When appropriate,” proposed orders should be submitted with motions, for example motions to be relieved, pro hac vice admissions, and open commissions. No proposed order should be submitted with a dispositive motion. Unless the court orders otherwise, no motion may be adjourned on consent more than three times or for a cumulative total of more than 60 days.

Motion Paper Word Limits and Certification: Under new Rule 202.8-b, moving affidavits, affirmations, briefs, and memoranda of law shall be limited to 7,000 words. Reply affidavits, affirmations, and memoranda are limited to 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief. Every brief, memorandum, affirmation, and affidavit shall include on a page attached to the end of the applicable document, a certification by the counsel setting forth the number of words in the document and certifying that the document complies with the word count limit. Of course, counsel should also be cognizant of Judges’ part rules in this regard as well. Electronically-submitted memoranda of law, affidavits and affirmations exceeding 4500 words, shall include bookmarks providing a listing of the document’s contents and facilitating easy navigation by the reader.

Statements of Material Facts: Under new Rule 202.8-g, summary judgment motions shall include a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. The opposing party shall submit a correspondingly numbered paragraph responding to each numbered paragraph in the moving party’s statement, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. Each numbered paragraph of the movant’s statement of material facts will be deemed admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. Each statement of material fact, including each statement controverting any statement of material fact, must be followed by citation to evidence submitted therewith.

Print Type, Margins and Bookmark: Rule 202.5(a) requires print no smaller than 12-point, 8½ x 11-inch paper bearing margins no smaller than one inch, and footnote print size no smaller than 10 points.  Electronically-submitted memoranda of law, affidavits and affirmations exceeding 4500 words, shall include bookmarks providing a listing of the document’s contents and facilitating easy navigation by the reader within the document.

Motion Oral Argument: Rule 202.8-f provides that each court or court part shall adopt a procedure governing requests for oral argument, provided that, in the absence of such an adopted procedure, any party may request oral argument of a motion by letter accompanying the motion papers. Notice of the date selected by the court shall be given, if practicable, at least 14 days before the scheduled oral argument.  At that time, counsel shall be prepared to argue the motion, discuss resolution of the issue(s) presented and/or schedule a trial or hearing. Oral arguments may be conducted by the court by electronic means.