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Advisory Council Proposes a Series of Commercial Division Rule Changes

The final month of summer has seen a flurry of rulemaking activity with the Commercial Division Advisory Council (the “Advisory Council”) proposing four changes to the Commercial Division Rules. The Office of Court Administration has requested public comment on each proposal, and we will provide an update if any of the proposed amendments are adopted.

Proposed Amendment to Rule 1: Videoconferencing

The first proposed rule change, announced on August 1, 2019, would allow counsel to participate in court proceedings from remote locations via videoconference.  As explained by the Advisory Council in the accompanying memorandum, “[a] number of Commercial Division Justices have sought to address the issue of expensive and unnecessary travel time by permitting counsel to participate in some proceeding by telephone.” According to the Advisory Council, allowing counsel to participate in certain proceedings via videoconference “will advance the goals of Chief Judge DiFiore’s Excellence Initiative” and will “be consistent with the Commercial Division’s role as a laboratory for innovation in the court system.”

The proposed rule change would allow counsel to “request the court’s permission to participate in court conferences and oral argument of motions from remote locations through use of videoconferencing or other technologies.”

The public comment period ends on September 30, 2019.

Proposed Amendment to Rule 6: Font and Font Size

On August 22, 2019, the Office of Court Administration requested public comment on a proposed amendment to Commercial Division Rule 6The amendment would increase the font size of footnotes from 10-point to 12-point and would require the use of a proportionally spaced serif typeface in all papers filed with the Court.  With Commercial Division Rule 17 setting a word limit rather than a page limit, the Advisory Council explains that increasing the font size of footnotes will have no impact on brief writing.  Rather, a larger font size coupled with a proportionally spaced serif typeface would enhance readability, improve comprehension of long passages of text, and “may enhance efficiency for practitioners and the Court.”

The public comment period is open through October 25, 2019.

Proposal to Repeal Rule 23: the 60-day Rule

On September 3, 2019, the Office of Court Administration announced a proposal to repeal Commercial Division Rule 23 (known as the “60-Day Rule”).[1]  The 60-Day Rule requires movant’s counsel to notify the court and other parties whenever a motion has not been decided within 60 days of its submission or oral argument.  According to the Advisory Council a repeal is necessary because “(1) the rule puts attorneys in the difficult position of reminding judges of their failure to make a decision and is therefore rarely followed; (2) an analogous rule applicable more broadly to Supreme and County Court (22 NYCRR § 202.8(h)) was rescinded in 2006; and (3) judges currently receive notice of such unresolved motions through other channels.”

The public comment period ends on November 1, 2019.                                                    

Proposed Amendment to Rule 11-g: “Attorneys Eyes Only” designation

The final proposed rule change, announced on September 10, 2019, would amend Commercial Division Rule 11-g and the statewide Standard Form Confidentiality Order (“SFO”) to allow parties to designate certain documents as “highly confidential—for attorney’s eyes only (“AEO”).” 

As explained by the Advisory Council in the accompanying memorandum, an AEO provision “would be very useful in commercial litigation, especially in matters involving potential disclosure of trade secrets between direct competitors[.]”  While the new provision could be subject to abuse, the Advisory Council does not share the concerns of the City Bar that an AEO provision “would be invoked far more often than that necessary.”  The Advisory Council notes that AEO designations “are common in commercial litigation both inside and outside the Commercial Division” and in federal court.  Therefore, the Advisory Council concludes, a narrowly tailored AEO provision will not lead to “inefficient over-designations of AEO material and extra motion practice” and would instead be a welcomed addition to the Commercial Division.

The public comment period is open through November 8, 2019.

By Michael Farinacci and Muhammad U. Faridi

[1] Currently, Rule 23 provides: “If 60 days have elapsed after a motion has been finally submitted or oral argument held, whichever was later, and no decision has been issued by the court, counsel for the movant shall send the court a letter alerting it to this fact with copies to all parties to the motion.” 22 NYCRR § 202.70(g).