The New Normal? An Update On Commercial Division Operations

COVID-19 has ushered in a new era for litigation in the Commercial Division. Here are the key developments litigants should be aware of.

Remote Appearances and No Paper Copies

In May 2020, e-filing in the Commercial Division resumed in earnest, with a few important differences from the status quo ante:

1. Most, if not all, appearances in the Commercial Division are proceeding remotely via Microsoft Teams. While the Commercial Division encourages parties to conduct virtual evidentiary hearings and non-jury trials, in-person jury trials will resume on March 22, 2021.
2. Per Administrative Order AO/267/20, paper copies of motions and other documents in e-filed cases are not required in the Commercial Division until further notice. Several Commercial Division Justices in New York County, including Justice Schecter, Justice Masley, and Justice Ostrager, have updated their individual rules to note that working copies are no longer required.
3. Foreclosure proceedings and eviction proceedings continue to be subject to restrictions and modified procedures pursuant to various statutes, Executive Orders, and/or Administrative Orders from the Court.

Changes to the Bench

Justice Robert R. Reed joined the bench in October and Justice Marcy Friedman and Justice O. Peter Sherwood recently retired. Justices Melissa A. Crane and Margaret Anne Pui Yee Chan are expected to join the Commercial Division, though it is unclear whether they will bring any of their existing caseload with them or how the caseloads of Justices Friedman and Sherwood will be reassigned.

New Commercial Division Rules Continue Apace

The Commercial Division continues to be on the vanguard of instituting new rules to expedite dispute resolution, reduce costs for litigants, and incorporate technology into the practice of law before the Commercial Division. Just as the non-Commercial Division has now adopted many of the Commercial Division's rules (see Administrative Order 270/20), the following rules have recently been enacted:

• Amendment to Commercial Division Rule 1 to Facilitate Remote Video Appearances by Counsel, effective on July 15, 2020 (see  AO/63);
• Amendment of the Commercial Division Standard Form Confidentiality Order and Rule 11-g to Allow "Highly Confidential – Attorney's Eyes Only" Designations, effective on October 13, 2020 (see  AO/134/2020);
• Amendment to Commercial Division Rule 6 to Permit the Court to Require Hyperlinking in Electronically Filed Documents, a effective on November 16, 2020 (see  AO/133/20); and
• Revision of Rule 31 of the Rules of the Commercial Division, effective on March 1, 2021 (see  AO/18/21) (to allow for electronic submission of pre-trial materials).

A number of other rule changes are currently open for public comment and we expect these to be enacted soon with few, if any, modifications:

• October 22, 2020: Request for Public Comment on a Proposed New Commercial Division Rule to Allow Virtual Evidentiary Hearings and Non-Jury Trials on Consent;
• November 20, 2020: Request for Public Comment on a Proposed New Commercial Division Rule on Remote Depositions and a Remote Deposition Protocol;
• December 4, 2020: Request for Public Comment on an Amendment to Commercial Division Rule 3(a) (22 NYCRR § 202.70(g), Rule 3(a)) to Permit the Use of Neutral Evaluation as an ADR Mechanism and to Allow for the Inclusion of Neutral Evaluators in Rosters of Court-Appointed Neutrals;
• December 10, 2020: Request for Public Comment on a Proposal to Amend Commercial Division Rule 30 to Provide for a Mandatory Settlement Conference; and
• December 23, 2020: Request for Public Comment on a New Commercial Division Rule Requiring a Nongovernmental Corporate Party to File a Disclosure Statement Identifying Any Parent Corporation and Any Publicly Held Corporation Owning 10% or More of Its Stock, or State That There Is No Such Corporate Ownership.

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