The New York Commercial Division Advisory Council (CDAC) has proposed amending the Commercial Division Rules to address certain aspects of pre-trial motions in limine. The Administrative Board of the Courts is seeking public comment on the CDAC’s proposals. A copy of the proposed changes, with the CDAC’s rationale for those changes can be found here.
Current Commercial Division Rule 27, provides: “Motions in Limine. The parties shall make all motions in limine no later than ten days prior to the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial conference, unless otherwise directed by the court.”
Thus, the current rule provides no specific guidance, e.g., on the subject matter that may be included in motions in limine, or the specific timing of any response.
The CDAC’s proposed amendment would provide:
Opposition papers, if any, shall be served and filed no later than two days before the return date of the motion, unless otherwise directed by the court. Objections to the admissibility of specific exhibits or specific deposition testimony based on basic threshold issues such as lack of foundation or hearsay shall be made under Rule 28 and Rule 29, respectively. Motions in limine should be used to address broader issues concerning, for example, (1) the receipt or exclusion of evidence, testimony, or arguments of a particular kind or concerning a particular subject matter, (2) challenges to the competence of a particular witness, or (3) challenges to the qualifications of experts or to the receipt of expert testimony on a particular subject matter. Motions in limine should not be used as vehicles for summary judgment motions.
The proposal fleshes out the point that motions in limine should be directed, in specific detail, at various evidentiary issues, and should not be a vehicle for belated back door summary judgment motions. The amendment gives the parties and court a means to focus at trial, and streamline the process by addressing evidentiary issues in advance of trial. While motions in limine likely have been used for such purposes already, the proposed rule amendments overtly bring these practices to the parties’ attention, and emphasize that motion in limine practice should be more common. This takes motions in limine from a sporadic occurence, and makes the case for a best practice use of motions in limine.
The CDAC’s rationale for the rule change states:
The Advisory Council recommends Rule 27 be modified to add a deadline for service of opposition papers to motions in limine and to provide guidance on the types of issues that motions in limine should address. The Advisory Council directs attorneys to sponsor their objections to exhibits and deposition testimony under Rules 28 and 29 and to use motions in limine to address broader case issues, such as challenging the competence of a witness, the propriety of expert testimony, or evidence related to a particular subject matter. Last, the Advisory Council thought it wise to include an admonition to parties and their counsel not to use a motion in limine as an application to bring an untimely motion for summary judgment as the courts will not be receptive to such an initiative.
Our thanks to business courts pioneer Robert L. Haig, of Kelley Drye, for bringing this development to our attention.