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To: NYSBA President, T. Andrew Brown
From: NYCLA Supreme Court Committee
Date: August 4, 2021
Re: Comments on NYSBA Task Force on Uniform Rules Report
On behalf of the Supreme Court Committee of the New York County Lawyers Association (“NYCLA”), we thank the NYSBA Task Force on Uniform Rules (“the Task Force”) for including the new paragraphs on page nine (9), recognizing that its criticisms of the new Uniform Rules expressed in its Report dated July 19, 2021 (the “Task Force Report”) do not apply to the same rules in the Commercial Division. This paragraph appropriately recognizes the significance of the Commercial Division in resolving commercial disputes and causing parties to handle commercial disputes in New York. We refer to our initial comments to the interim task force report, contained as an appendix to the Task Force Report, for a more complete exposition of the Commercial Division’s significance to the resolution of Commercial Disputes.
However, we believe that the Task Force Report, taken as a whole, contains points that would undermine the rules in the Commercial Division that have substantially similar phrasing as the new Uniform Rules. The Task Force condemns any Uniform Rule (and presumably any analogous Commercial Division Rule) if there is “any possibility” of a conflict or encroachment on the CPLR. Task Force Report at 13. As the Report recognizes on page 13, this standard goes well beyond the case law, which would invalidate Uniform Rules only if they pose a “direct and obvious conflict” with the CPLR. Task Force Report at 13 (“the law is clear that a direct conflict must be resolved in favor of the existing statute”); see Sciara v. Surgical Assocs. of W.N.Y., P.C., 104 A.D.3d 1256, 1260, 961 N.Y.S.2d 640, 643 (2d Dep’t 2013) (upholding Uniform Rule: “we do not believe that there is a direct and obvious conflict between CPLR 3113 (c) and the Uniform Rules”); Dalrymple v. Martin Luther King Community Health Center, 127 A.D.2d 69, 72, 514 N.Y.S.2d 385, 386 (2d Dep’t 1987) (despite an “apparent conflict” between the Uniform Rules and the CPLR, the court upheld Uniform Rule because the Uniform Rule and the CPLR rule “have the same goal” and the Uniform Rule is a “logical extension” of the CPLR).
Of course, we do not support all uniform rules that may be promulgated in the future, but we do not believe that uniform rules should be automatically invalidated if there is “any possibility” that they conflict with the CPLR. And because obtaining legislative revision of the CPLR is quite arduous, the standard that the Task Force advocates would have a chilling effect on procedural innovation and will essentially quell any meaningful change to the CPLR, a statute adopted in 1962.
If it were to be adopted by courts, the standard espoused in the Task Force Report could have the unintended consequence of destabilizing Uniform Rules in many areas of procedural law not addressed by the Task Force Report. The Task Force Report fails to recognize that the courts, through the adoption of Uniform Rules, have already adopted many rules (quite apart from the rules adopted earlier this year) that could be said to be in tension with the CPLR. See Paul H. Aloe, 1996–97 Survey of New York Law Civil Practice, 48 Syracuse L. Review 427 (1998) (“Another significant change came in the form of the Uniform Rules which brought a major expansion of New York’s sanctions rules and a requirement for the signing of pleadings. These rule changes were enacted by the Office of Court Administration (OCA) after more modest revisions failed in the legislature. The OCA took to the Uniform Rules as a means of major reform, presaging the growing importance of the Uniform Rules as a body of law every bit as important as the CPLR and, in some respects, in conflict with the CPLR.”).
We reiterate the specific points in our earlier report. We continue to believe that such rules as the rule requiring adherence to discovery schedules, enhanced meet and confer requirements, limits on depositions, limits on interrogatories and limits on document requests (Uniform Rules 202.20, 202.20-b, and 202.20-c) have worked well in federal court and in the Commercial Division and are even better suited for smaller cases where it is even more important to streamline and enhance the efficiency of case management. We note that NYSBA has never objected to the adoption of these rules in any other court, and in fact, some committees of NYSBA have affirmatively supported some or all of these rules.
As an example of the types of changes that would be forbidden under the standard set out in the Task Force Report, we point to categorical privilege logs, a relatively recent innovation, for which the Uniform Rules and the Commercial Division Rules provide. See Uniform Rule
§202.20-a. The Commercial and Federal Litigation Section of NYSBA strongly supported these rules in 2017, as do many commentators. Further, this rule is particularly well-suited for smaller cases outside the Commercial Division where the work of creating extensive privilege logs can be disproportionate to the amount at stake, as opposed to large scale cases where full privilege logs might be more warranted.
In sum, our Committee thanks the NYSBA for considering our comments, which are preliminary and which we reserve the right to amend. We appreciate NYSBA’s work in bringing these issues to the attention of the legal community and we look forward to further dialogue on this important subject.