THE RULES HAVE CHANGED: SHOULD YOU BE CONCERNED?

By: Hon. Ira B. Warshawsky, J.S.C. (Ret.)
April, 2014

In September, 2013, changes were made to the Rules of the Commercial Division of the Supreme Court (Section 202.70). These changes most importantly were to Rule 8 – Meet and Confer and Rule 13 – Expanded Expert Witness Discovery.

Rule 8(b) specifically targets Electronically Stored Information (ESI) and the discovery of said information (eDiscovery).

The rule now requires counsel to “confer prior to the preliminary conference with regard to anticipated electronic discovery issues” (Rule 8(b)). The rule lays out quite clearly what issues “shall be addressed by the court at the preliminary conference” . . . “but not be limited to (i) identification of potentially relevant types or categories of electronically stored information (“ESI”) and the relevant time frame; (ii) disclosure of the applications and manner in which the ESI is maintained; (iii) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible; (iv) implementation of a preservation plan for potentially relevant ESI; (v) identification of the individual(s) responsible for preservation of ESI; (vi) the scope, extent, order, and form of production; (vii) identification, redaction, labeling, and logging of privileged or confidential ESI; (viii) claw-back or other provisions for privileged or protected ESI; (ix) the scope or method for searching and reviewing ESI; (x) the anticipated cost and burden of data recovery and proposed initial allocation of such costs; and (xi) designation of experts.”

The rule change is very comprehensive and resembles the federal rules. New York has taken a while to catch up to our federal friends in this area and only in the past few years has e-discovery guidance been handed down by our Appellate Divisions (most specifically by the First Department).

But what is the result of this rule change? Will plaintiff call defendant, invite them to coffee and say “let's meet and confer” with nothing of substance occurring (sometimes referred to as a “Drive By” meet and confer by our federal colleagues)? Or will the call never be made? If the “Meet and Confer” never takes place, will anyone care?

Will the rule be enforced and how? The language of the rule is “counsel shall confer” [note mandatory language].

Will counsel pretend they don't have an ESI problem until it “hits the fan” and the inquiring judge asks “Didn't you have a “meet and confer” on your ESI issues?” ” If not, why not?”

As any litigator knows our judges are independent. Some strictly follow court rules. Others let you “make your own bed” and then may burn it to the ground with you in it. It pays to do your research. Every county may have its own culture and every judge within the court may yet have a different spin on a particular rule or issue. It would be wise to try to find out your assigned judge's view on Rule 8(b) before you intentionally choose to ignore it or “Drive By” it. The parties may find that employing a neutral mediator/referee to handle an ESI Meet and Confer may be money well spent.

Another rule change is found in Rule 13, the new Expert Witness rule. For decades, commercial litigators have complained about the lack of expert discovery in New York State courts compared to the federal system. The state court rules, exemplified by CPLR 3101(d) exist to serve the needs of the negligence bar. Whether you would argue that they serve any purpose today or not, most commercial litigators would say they do not.

Three years ago, a pilot project on the use of an expert witness, obtaining their reports (real reports, not a 3101 (d) document) and the ability to depose the expert, was created by the Commercial Litigation Committee of the Nassau Bar Association and sanctioned by the OCA.

Today that Pilot Project has become in substance, Rule 13(c).

Now that the bar has this expert witness ruled, will they be sorry? Is it too controlling of the parties? Does it limit their beloved pre-trial delaying tactics or what are sometimes called the Pearl Harbor Approach to Expert Witnesses?

Rule 13(c) does at least bring certainty to an often confusing area where the CPLR urges the court (based on appellate decisions) to allow late notices for expert witness disclosure and be creative in then allowing the testimony despite the late notice.

Now the rule requires detailed expert reports and even depositions of the experts. The rule reduces the uncertainty of the timing of expert disclosure, when and how an expert may be precluded due to untimely or inadequate 3101(d) statements, and all of the normal 3101(d) disclosure problems that have plagued counsel and judges for decades.

Once again, only time will tell how the rule will be used by commercial litigators and the judges before whom they practice.

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Rule 13(c). If any party intends to introduce expert testimony at trial, no later than thirty days prior to the completion of fact discovery, the parties shall confer on a schedule for expert disclosure – including the identification of experts, exchange of reports, and depositions of testifying experts – all of which shall be completed no later than four months after the completion of fact discovery. In the event that a party objects to this procedure or timetable, the parties shall request a conference to discuss the objection with the court.

Unless otherwise stipulated or ordered by the court, expert disclosure must be accompanied by a written report, prepared and signed by the witness, if either (1) the witness is retained or specially employed to provide expert testimony in the case, or (2) the witness is a party's employee whose duties regularly involve giving expert testimony. The report must contain:

(A) a complete statement of all opinions the witness will express and the basis and the reasons for them:

(B) the data or other information considered by the witness in forming the opinion(s);

(c) any exhibits that will be used to summarize or support the opinion(s);

(D) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(E) a list of all other cases at which the witness testified as an expert at trial or by deposition during the previous four years; and

(F) a statement of the compensation to be paid to the witness for the study and testimony in the case.

The note of issue and certificate of readiness may not be filed until the completion of expert disclosure. Expert disclosure provided after these dates without good cause will be precluded from use at trial.

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Hon. Ira B. Warshawsky, is a retired Justice of the Supreme Court, Nassau County, Commercial Division. He is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available nationwide for arbitrations and mediations. For the third year, he was voted a Top Ten Arbitrator in the 2016 New York Law Journal Reader Rankings Annual Survey, and was also named a National Law Journal 2016 Alternative Dispute Resolution Champion, as part of a select group of only 48 nationwide. Judge Warshawsky is Of Counsel to Meyer, Suozzi, English & Klein, P.C., in Garden City, NY.

Click here to view Hon. Ira Warshawksy's resume

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.