By V. Christopher Potenza, Esq. and Amber E. Storr, Esq.
Beginning February 1, 2021, many substantive and notable revisions to the Uniform Civil Rules for the New York Supreme and County Courts will take effect pursuant to Administrative Order 270/20 issued by Hon. Lawrence K. Marks, Chief Administrative Judge of the Courts. The order contains 29 additions and revisions that borrow heavily from both the Rules of the Commercial Division of the Supreme Court as well and the Federal Rules of Civil Procedure. Judge Marks, recognizing the adaptations made by the courts and counsel in response to the COVID-19 pandemic, noted the unique opportunity for permanent reform. These rules will require attorneys (and their staff) to comply with new procedures and formalities throughout all phases of litigation, from the preliminary conference, through discovery and motions, and up to and including trial.
As with the Commercial Division Rules, these changes are designed to move litigation forward in a more efficient, effective manner for the courts. They require more communication and cooperation between counsel, and better communication with the court. Some of the revisions remove a certain amount of gamesmanship in procedure and are geared to reduce otherwise unnecessary motion practice or court intervention. Importantly, paralegals and administrative staff will need to know and apply these rules, especially as they pertain to the form and content of submissions to the court.
Some of the more notable changes are the following:
- Attorney consultations are required prior to preliminary and compliance conferences, discovery motions, and throughout litigation to resolve any issues, including discovery disputes, as well as the use of ADR and potential settlement.
- Interrogatories are limited in number (25) and depositions are limited in number (10) and duration (7 hrs).
- Formal and particularized responses and objections to document demands are required.
- Strict compliance with discovery obligations in scheduling orders must be adhered to and noncompliance is sanctionable. Failure to produce requested documents before a deposition may result in preclusion.
- Word count limits on motion documents (7,000 for each moving paper, 4,200 for each reply paper) and certification of word counts are required.
- Electronically submitted memorandum of law, affidavit and affirmation, exceeding 4500 words, shall include bookmarks providing a listing of the document’s content and facilitating easy navigation by the reader within the document.
- Summary judgment motions require a separate formal statement of undisputed material facts.
- Trial witness lists and order of testimony to be provided in writing at commencement of trial.
Trial counsel shall confer to streamline issues for trial, and consent to or stipulate to evidence that is not contested, including aspects of expert witness testimony.
To better understand these changes, it is best to look at them in the context of three distinct categories: 1.) procedure, form, and content of papers submitted to the court; 2.) conduct of counsel and interactions with the court; and 3.) limitations on discovery.
Procedure, form, and content of papers submitted to the court
Section 202.5-a: Filing by Electronic Transmission (amended)
- Amends prior rule to include electronic transmissions in addition to facsimile.
- Papers shall not be submitted to the court by fax without advance approval of the justice assigned and should not be followed by hardcopy unless requested.
In cases not pending in NYSCEF, the court may permit counsel to communicate with the court and each other by email. In court’s discretion, counsel may be requested to submit memoranda of law by e-mail or by other electronic means, such as by computer flash drive, along with an original and courtesy copy.
Section 202.5(a)(1) & (2): Index Number; Form; Label (amended)
- (1): Additional requirement for papers filed with the court: shall contain print no smaller than 12-point font, or 8 ½ x 11 inch page, bearing margins no smaller than one inch. The print size of footnotes shall be no smaller than 10 point.
(2): Each electronically submitted memorandum of law, affidavit and affirmation, exceeding 4500 words, shall include bookmarks providing a listing of the document’s content and facilitating easy navigation by the reader within the document.
Section 202.8-a: Motion in General (new)
- Movant shall specify the exact relief sought in the notice of motion and concluding section of memoranda of law; attach pleadings as necessary and as required by CPLR; use tabs for exhibits on hard copies; if attachment/ exhibit is voluminous, attach relevant excerpts and submit full exhibit separately; translate foreign language documents pursuant to CPLR 2101(b); and submit copy of cited decision or authority that is not readily available.
- Proposed Orders should be submitted with simple motions (motion to be relieved, pro hac vice, open commission, etc.). No proposed order should be submitted with motion papers on a dispositive motion.
Adjournment of Motions: Unless court orders otherwise, no motion may be adjourned on consent more than three times or for a cumulative total of more than 60 days.
Section 202.8-b: Length of Papers (new)
Length of papers:
Unless otherwise permitted by the court: affidavits, affirmations, briefs, and memoranda of law in chief shall be limited to 7,000 words each; reply affidavits, affirmations and memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in memoranda in chief.
- Word count shall exclude the caption, table of contents, table of authorities, and signature block.
Every brief, memoranda, affirmation and affidavit shall include on a page attached to the end of document a certification by counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with this word count limit or extended limit as approved by court.
- Unless otherwise permitted by the court: affidavits, affirmations, briefs, and memoranda of law in chief shall be limited to 7,000 words each; reply affidavits, affirmations and memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in memoranda in chief.
Section 202.8-d: Orders to Show Cause (new)
Motions shall be brought on by order to show cause only when there is genuine urgency (e.g. applications for provisional relief), a stay is required, or a mandate by statute. Absent permission by the court, reply papers shall not be submitted on OTSC.
Section 202.8-e: Temporary Restraining Orders (new)
- Unless moving party can demonstrate significant prejudice by reason of giving notice, or that notice could not be given despite a good faith effort, a temporary restraining order should not be issued ex parte.
Unless excused by court, the applicant must give notice of the time, date, and place that the application will be made, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the application. Application shall contain affirmation that: (a) notice has been given; or (b) notice could not be given despite a good faith effort, or (c) there will be significant prejudice to the party seeking the restraining order by giving of notice. (This subdivision shall not apply to special proceedings under Article 7 of the Real Property Actions and Proceedings Law, nor requests for an order of protection under section 240 of the Domestic Relations Law.)
Section 202.8-f: Oral Argument (new)
- (a): Each court or court part shall adopt a procedure governing request for oral arguments of motions, provided that, in absence of the adoption of such a procedure, provisions of paragraph (b) shall apply.
- (b): 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.
(c): Oral argument may be conducted by electronic means.
Section 202.8-g: Motions for Summary Judgment; Statements of Material Facts (new)
- Upon any motion for summary judgment, other than a Motion for Summary Judgment in Lieu of Complaint (CPLR 3213), there shall be annexed to the notice of motion 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.
- Papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing… material facts as to which it is contended that there exists genuine issue to be tried.
- Each numbered paragraph will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.
Each statement must be followed by citation to evidence submitted in support of or in opposition to the motion.
Section 202.8-c: Sur-Reply and Post-Submission Papers (new)
Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted, except that counsel may inform the court by letter of the citation of any post-submission court decision that is relevant to the pending issues, but no additional argument.
Section 202.20-h: Pre-Trial Memoranda, Exhibit Book and Requests for Jury Instructions (new)
- Counsel for each side shall submit a pre-trial memorandum of no longer than 25 pages at the pre-trial conference, or such other time as the court may set. No memoranda in response shall be submitted.
- On first day of trial, or at such other time as the court may set, counsel shall submit an indexed binder or notebook, or the electronic equivalent for the court’s use, a copy for each attorney, and originals in a smaller notebook for the witnesses shall be prepared and submitted. Plaintiff’s exhibits shall be numerically tabbed, and defendant’s exhibits shall be tabbed alphabetically.
Where the trial is by jury, counsel shall, on the first day of the trial or such other time as the court may set, provide the court with case-specific requests to charge (or PJI reference) and proposed jury interrogatories.
Conduct of counsel and interactions with the court
Section 202.1(f) & (g): Appearance by Counsel with Knowledge and Authority (new)
Counsel must appear familiar with the case on which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance. Failure to comply may be treated as a default (Rule 202.27) and/or a failure to appear (Rule 130-2.1). Important that counsel be on time for all scheduled appearances.
Section 202.28: Discontinuance of Civil Actions and Notice to the Court (amended)
- (a) If action is settled, discontinued, or otherwise disposed of, counsel shall immediately inform the assigned judge or court part by submission of a copy of the stipulation or letter directed to the clerk of the part along with notice to the champers of the assigned judge via telephone or email. (Amends prior rule that stipulation of discontinuance be filed within 20 days)
(b) Parties are under continuing obligation to notify the court as promptly as possible in the event that an action is settled, discontinued or otherwise disposed of or if case/motion has become wholly/partially moot, or if party has died or filed petition in bankruptcy. Notification made to assigned judge in writing.
Section 202.29: Alternative Dispute Resolution (ADR); Settlement Conference Before a Justice Other than the Justice Assigned to the Case (new)
Counsel may jointly request a settlement conference to be held before a separate judge not assigned to the case, to be granted at the discretion of the assigned judge in the interests of justice. Request may be made at any time in the litigation.
Section 202.23: Consultation prior to Preliminary and Compliance Conference (new)
Prior to preliminary or compliance conference, counsel must consult about resolution of case in whole/part; discovery disputes; any voluntary and informal exchange of information that the parties agree would help aid early settlement of the case; the use of ADR to resolve all/some of the issues in the litigation; and any other issues to be discussed at the conference. Counsel shall make good faith effort to reach agreement on these matters in advance of conference.
Section 202.20-a: Privilege Logs (new)
- Meet and Confer: Parties shall meet and confer at the outset of the case, and from time to time thereafter, to discuss the scope of the privilege review, the amount of information to be set out in the privilege log, the use of categories to reduce document-by-document logging, whether any categories of information may be excluded from the logging requirement, and any other issues pertinent to privilege review, including the entry of an appropriate non-waiver order.
Court Order: Agreements and protocols agreed upon by parties shall be memorialized in a court order. If parties are unable to come to agreement, the court shall set the scope of the privilege review by order.
Section 202.20-e: Adherence to Discovery Schedule (new)
- Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Applications for extensions shall be made as soon as practicable and prior to expiration of such deadline. Failure to comply may result in appropriate sanctions or other relief pursuant to CPLR 3126.
If a party seeks documents as condition precedent to a deposition of such party and the documents are not produced by the date fixed, the party seeking disclosure may ask the court to preclude the non-producing party from introducing such documents at trial.
Section 202.20-f: Disclosure Disputes (new)
- To the maximum extent possible, discovery disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice.
- Absent exigent circumstances, prior to contacting the court regarding a disclosure dispute, counsel must first consult with one another, either in-person or by phone, in a good-faith effort to resolve all disputes about disclosure.
- Any discovery motion must be supported by an attestation that such good-faith conference occurred, setting forth the date and time of the conference, the persons participating, and the length of time of the conference. If the moving party was unable to conference due to the unreasonable refusal of the adverse party, such efforts should be detailed in the moving papers. Unreasonable failure or refusal to participate may result in sanctions.
Failure of counsel to comply with this rule may result in the denial of a discovery motion, without prejudice, or such motion being held in abeyance until the informal resolution procedures of the court are conducted.
Section 202.20-g: Rulings at Disclosure Conferences (new)
For all disclosure conferences conducted by non-judicial personnel, prior to conclusion of the conference, at the request of any party:
- All resolutions shall be dictated into the record, and either the transcript shall be submitted to the court to be “so ordered,” or the court shall otherwise enter an order incorporating the resolutions reached;
- The parties shall prepare a writing setting forth the resolutions reached and submit the writing to court for approval and signature; or
Prior to conclusion of the conference, parties shall prepare an outline of the material terms and thereafter agree upon and jointly submit within one (1) business day of conference a stipulated proposed order memorializing the resolution of the discovery dispute, or advise the court that no such order can be agreed upon.
Section 202.10 Adjournments of Conferences (amended)
- Adds: (b): Adjournments of conferences shall be granted upon showing of good cause. Adjournment of conference will not change any date on any court order unless otherwise directed by the court.
Any party may request to appear by electronic means, and are courts encouraged to grant such requests.
Section 202.34: Pre-Marking of Exhibits (new)
Counsel for the parties shall consult prior to trial and shall in good-faith attempt to agree upon the exhibits that will be offered into evidence without objection. Uncontested exhibits will be marked into evidence and exhibits not consented to shall be marked for identification only.
Section 202.26: Settlement and Pretrial Conferences (amended)
- (a) Settlement Conference: At the time of certification of the matter for trial or at any time after discovery cut-off, the court may schedule a settlement conference which shall be attended by counsel and the parties, who are expected to be fully prepared to discuss the settlement of the matter.
- (b) Pre-Trial Conference: Prior to trial, counsel shall confer in good-faith effort to identify matters not in contention, resolve disputed questions without need for court intervention, and further discuss settlement of the case. Counsel shall be prepared to discuss at conference prior to opening statements all maters still in disagreement and potential for settlement.
(c) Consultation Regarding Expert Testimony: The court may direct that counsel for the parties consult in good faith to identify those aspects of their respective experts’ anticipated testimony that are not in dispute, and may further direct that any such agreement be reduced to written stipulation.
Section 202.37: Scheduling Witnesses (new)
- At commencement of trial or at such time as the court may direct, each party shall identify in writing for the court the witnesses it intends to call, the order in which they shall testify, and the estimated length of their testimony and shall provide a copy of such witness list to opposing counsel.
- Counsel shall separately identify for the court only a list of the witnesses who may be called solely for rebuttal or with regard to credibility.
Court may permit for good cause shown and in the absence of substantial prejudice, a party to call a witness to testify who was not on list.
Section 202.20-i: Direct Testimony by Affidavit (new)
- Court may require that direct testimony of a party’s own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided that (a) that the court may not require the submission of a direct testimony affidavit from a witness who is not under the control of the party offering the testimony, and (b) the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court.
Where an objection to a portion of a direct testimony affidavit is sustained, the court may direct that such portion be stricken. The submission of direct testimony in affidavit form shall not affect any right to cross-examination or re-direct examination of the witness.
Section 202.23 Staggered Court Appearances (new)
- Each court appearance for oral argument on a motion shall be assigned either a set time or time interval during which the appearance is expected to be held.
- Even those parties who believe that they are not directly involved in the matter before the court must appear at the appointed date and time assigned by the court unless specifically excused by the court.
- Each attorney who receives notification of an appearance on a specific date and time is responsible for notifying all other parties by e-mail that the matter is scheduled to be heard on that assigned date and time. All parties are directed to exchange email addresses with each other at commencement of the case.
Requests for adjournments shall be transmitted in writing to the court and to all parties, in such manner as the court may direct, so as to be received no later than 48 hours before the hearing and shall set forth whether the other parties consent to the adjournment.
Limitations on discovery
Section 202.20 Interrogatories (new)
Interrogatories are limited to 25 in number, including subparts, unless the court orders otherwise. Limit applies to consolidated actions as well.
Section 202.20-c: Responses and Objections to Documents Requests (new)
(a) For each document request propounded, the responding party shall, in its Response and Objections served pursuant to CPLR 3122(a), either:
- State that the production is made as requested; or
- State with reasonable particularity the grounds for any objection to production
- (b) Each response shall specify if any objection applies in whole or in part to the demand, and whether documents are being produced or withheld in whole or in part.
(c) In each Response, the responding party shall verify, for each individual request, whether the response is complete or there are no documents to produce.
Section 202.11: Discovery of Electronically Stored Information from Nonparties (new)
- Parties and nonparties should adhere to the Electronically Stored Information (“ESI”) guidelines as set in forth the Appendix to the Uniform Court Rules.
Amendment: The requesting party shall defray the nonparty’s reasonable production expenses in accordance with Rules 3111 and 3122(d) of the CPLR.
Section 202.20-b: Limitations on Depositions (new)
- Unless otherwise stipulated to by the parties or ordered by the court: (1) the number of depositions taken by plaintiffs, or defendants, or by third-party defendants, shall be limited to 10; and (2) depositions shall be limited to 7 hours per deponent.
- The deposition of an entity through one or more representatives shall be treated as a single deposition even though more than one person may be designated to testify on the entity’s behalf.
- Each deposition of an officer, director, principal, or employee of an entity who is also a fact witness, as opposed to an entity representative pursuant to CPLR 3106(d), shall constitute a separate deposition.
The court may alter these limits for good cause shown.
Section 202.20-d: Depositions of Entities; Identification of Matters (new)
- A notice or subpoena may name as a deponent a corporation, estate, etc. or any other legal or commercial entity, and notices and subpoenas directed to an entity may enumerate the matters upon which person is to be examined with reasonable particularity. If the notice/subpoena does not identify a particular officer/director/member/employee but elects to set forth the matters for examination, then no later than ten days prior to scheduled deposition, the named entity must designate and identify the individual(s) and set out the matters on which the individual(s) will testify.
- If notice/subpoena does identify a specific officer/director/member/employee and elects to set forth the matters for examination, then: (1) pursuant to CPLR 3106(d), the named entity shall produce the individual so designated unless, no later than ten days prior to scheduled deposition, notified requesting party that another individual would instead be produced and the identity, description, title of such individual is specified; (2) pursuant to CPLR 3106(d), notice/subpoena that names a particular officer, director, member, or employee of the entity shall include notice or subpoena, served upon such entity the identity, description or title of such individual; and (3) if named entity cross-designates more than one individual, it must set out the matters on which each individual will testify.
- Subpoena must advise a nonparty entity of its duty to make designations discussed on this Rule.
Individual(s) designated must testify about information known or reasonably available to the entity.
Given the fact that many of these civil rule changes simply reflect the adaptations made by the courts and practitioners during the past twelve months of the COVID-19 pandemic, and also mimic many of the Commercial Division and Federal Rules, these new rules and amendments should not be as cumbersome as they may first appear. While some of the more technical aspects may take some getting used to (word counts, electronic bookmarking, etc.), the overarching theme of these revisions is to avoid court intervention. Streamline discovery and limit the issues for court consideration or trial. If there is a dispute, pick up the phone and work it out, then send the court an e-mail once resolved.