On October 19, 2026, the Chief Administrative Judge of the New York Courts signed an Administrative Order (AO/306/2026) amending the Commercial Division Rules (Section 202.70 of the Uniform Rules of the Supreme and County Courts), by adding a new Rule 14-b, relating to discovery cost shifting. A request for public comment dated April 7, 2026, included a memorandum prepared by the Commercial Division Advisory Council setting forth the reasons it proposed this new Rule.
This new Rule provides that “If, in connection with a dispute regarding the production of documents, a party contends that cost shifting is warranted, the party’s motion or response should state the basis for the request and include a good-faith estimate of the amount of costs to be shifted, including an explanation of how that estimate was determined.”
The costs shifted to a party requesting the production of documents pursuant to an order determining a discovery dispute can be substantial (in some cases, more than a million dollars). By encouraging parties to articulate and evaluate the anticipated costs of disputed document discovery at an early stage, this new Rule will facilitate negotiated resolutions and help the parties and the Court to focus on discovery that is proportional to the needs of the case. In appropriate circumstances, this may avoid the expenditure of significant resources on discovery whose likely benefit does not justify its cost.
Thank you to Commercial Division Advisory Council Co-Chair Bob Haig and to former Appellate Division Presiding Justice Alan D. Scheinkman, who is a member of the Commercial Division Advisory Council, for bringing this to my attention.
Posted by Doug Toering of Mantese Honigman, PC. www.manteselaw.com
