Wilmington Trust Company (“WTC”) sought the enforcement of a €268,000,000 judgment. Defendants, a series of firms, funds, partners, and individual members of private equity fund groups, moved to dismiss. In opposing Defendants’ motion, Plaintiffs redacted certain portions of its
memorandum of law and used placeholder pages for over 60 documents and deposition transcripts filed as exhibits (“Exhibits”) on
New York State Courts Electronic Filing System (“NYSCEF”) because the documents purportedly contained private, confidential financial information, and certain business and proprietary information.
WTC then moved to seal the Exhibits.[2] Defendants cross-moved, similarly seeking to seal six deposition transcripts attached as Exhibits to Plaintiffs’ opposition. Neither party opposed the other’s motion. Nevertheless, Justice Reed explained “the court is required to make its own inquiry to determine whether sealing is warranted.”
In December 2020, the New York Law Journal
commented on the measures the New York State court system would enact to handle the recent $300 million budget cut. These measures included “adopting a strict hiring freeze, deferring raises, suspending countless programs, and declining to extend the judicial service of 46 retired trial and appellate judges.” This was a difficult decision to be sure, but the alternative could have been catastrophic: the layoff of over 300 employees.
Given the combination of the court system’s shrinking workforce and the existing backlog of cases, New York’s Commercial Division is seeking to reduce its caseload through the expansion of ADR, both externally and internally. In December 2020, the Commercial Division Advisory Council (“CDAC”) sought to adopt two new Commercial Division Rules that would expand the opportunities for litigants to settle out of or in court.
Professional Biography:
Joshua Schlenger is special counsel in the Business Trial Practice Group in the firm s New York office.
Areas of Practice
Josh represents corporate clients and other business entities in high-stakes litigation in New York Courts and jurisdictions nationwide. He guides clients in the financial services, pharmaceutical, aerospace and manufacturing industries through commercial, trade secrets, securities fraud, and bankruptcy litigation.
Clients, opposing counsel, and judges appreciate Josh for his ability to present complex facts and legal concepts in understandable ways. Josh’s skill in this regard enables him to obtain results for his clients at all phases of litigation, from pre-complaint to appeal.
(see
Fed. R. Civ. P. 30(b)(4)). The dramatic increase in use, comfort level, and apparent permanency is a direct result of the pandemic. Indeed, the vision of the Commercial Division Advisory Council (“CDAC”) is to ensure that the Commercial Division remains at the forefront of this trend.
In September 2020, the CDAC sought to adopt a new Commercial Division Rule that would expressly authorize and regulate the use of remote depositions (the “
Remote Deposition Proposal”). The Remote Deposition Proposal seeks to provide further guidance on what is considered undue hardship, a standardized remote deposition protocol form, the validity of an oath or affirmation administered during a remote deposition when the court reporter is not physically located where the witness is present, and protections for defending attorneys and their clients in the event of technical difficulties. The Proposal went out for
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Good news for lawyers preparing for trial in New York’s Commercial Division you can finally delete that old copy of WordPerfect. An upcoming amendment to the rule governing pre-trial memoranda, exhibits, and requests to charge makes a few changes that trial-ready attorneys should note.
Attorneys practicing in the paperless commercial parts will now submit their pre-trial documents on a USB flash drive. Hard copies are no longer required. If you’re practicing in the other commercial parts, submit your pre-trial memoranda and requests to charge in a Word document with twelve-point type. Your trial exhibits should be in an indexed binder or notebook with a copy for the court and each attorney, but you need not submit witness binders.