New Commercial Division Rules Addressing Discovery to take Effect on May 31, 2022

On May 16, 2022, Chief Administrative Judge Lawrence K. Marks ordered the implementation of revised Commercial Division Rule 11, providing a new preamble and new Rules 11(a-c).  The new rules take effect on May 31, 2022.  The text of the Order can be found here.  As set out below, the new rule focuses litigants, and judges, on reasonableness, proportionality and making litigation a more efficient process.

The new additions to Rule 11 include the following:

 Preamble to Rule 11. Acknowledging that discovery is one of the most expensive, time-consuming aspects of litigating a commercial case, the Commercial Division aims to provide practitioners with a mechanism for streamlining the discovery process to lessen the amount of time required to complete discovery and to reduce the cost of conducting discovery. It is important that counsel’s discovery requests are both proportional and reasonable in light of the complexity of the case and the amount of proof that is required for the cause of action.

Rule 11. Discovery.

(a) The court may direct plaintiff to produce a document stating clearly and concisely the issues in the case prior to the preliminary conference. If there are counterclaims, the court may direct the party asserting such counterclaims to produce a document stating clearly and concisely the issues asserted in the counterclaims. The court may also direct plaintiff and counterclaim plaintiff to each produce a document stating each of the elements in the causes of action at issue and the facts needed to establish their case.

(b) The court may further direct, if a defendant filed a motion to dismiss and the court dismissed some but not all of the causes of action, plaintiff and counterclaim plaintiff to revisit the documents to again state, clearly and concisely, the issues remaining in the case, the elements of each cause of action and the facts needed to establish their case.

(c) Any written description of a party’s claims/defenses provided under this Rule is not binding and does not limit the scope of a party’s pleadings.

The new preamble and new Rules 11(a-b), were suggested by the Commercial Division Advisory Committee (CDAC) for the reasons set forth in its June 30, 2021 memorandum.  A copy of the Memorandum is attached here.  The CDAC stated at the time:

The Advisory Council recommends Rule 11 be modified to include a Preamble about proportionality and reasonableness—two concepts that must govern discovery in all cases, including the most intricate, difficult and complex Commercial Division case. These concepts are included in a Preamble so that no party or counsel may argue that these concepts are modifying any legal standards or Rules that apply to the scope of discovery.

The Advisory Council also recommends the addition of provisions allowing the court to direct early case assessment disclosures and analysis prior to and after the preliminary conference. The goal of these recommendations is to streamline the discovery process so that discovery is aligned with the needs of a case and not a search for each and every possible fact in the case. Similar provisions for early case assessment documents are utilized in other international fora and federal courts.

Our thanks to business courts pioneer Robert Haig, of Kelley Drye, for bringing this development to our attention.