.. t,..J · Unified Court System

~ NEW YORK STATE .. t,..J · Unified Court System •••... ' OFFICE OF COURT ADMINISTRATION

LAWRENCE K. MARKS CHIEF ADMINISTRATIVE JUDGE

To: All Interested Persons

From: John W. McConnel I

MEMORANDUM

June 28, 2017

Re: Request for Public Comment on Proposed Model S tatus Conference Stipulation and Order Form for Use in the Commercial Division

JOHN W. M cCONNELL ~OUNSEL

The Commercial Division Advisory Cow1cil has recommended the adoption of a revised model status conference stipulation and order form fo r use in the Commercial Division (Exh. A). As set forth in a supporting memorandum from the Council's Subcommittee on Best Practices for Judicial Case Management (Exh. B), the proposed form is designed to incorporate the many changes in Commercial Division rules and practice since the form was last revised in October 2015. Among other changes, the proposed form sets forth a new section on expert discovery (Exh. B, p. 2); contains reminders on discovery deadlines, sealing motions, and alternative dispute resolution (Exh. B, p. 2); and provides for greater specificity on a range of topics in the discovery process (Exh. B, pp. 4-5). As with other forms implemented at the Council 's recommendation, the proposed form is designed to serve as a model; its use would not be mandatory.

Persons wishing to comment on the proposed form should e-mail their submiss ions to [email protected] or write to: Jolm W. McC01mell, Esq. , Cow1sel, Office of Court Administration, 25 Beaver Street, 11th Fl. , New York, New York 10004. Comments must be received no later than August 25, 2017.

All public comments wi ll be treated as available fo r disclosure under the Freedom of Info rmation Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.

CO UN SEL'S OF FI CE • 25 BEAVER STRE ET, N EW YOR K, NEW YORK 10004 • TE L: 21 2-428- 2 1 50 • FAX : 2 12- 428-21 55

EXHIBIT A

SUPREME COURT OF THE ST A TE OF NEW YORK, COUNTY OF ______ _

---------------------X

Plaintiff( s)

- against -

Defendant( s)

--------------------------------X

Present: Hon. -------

Part: ----------Index No.: -------

RJI Filing Date: _____ _

NEW MODEL STATUS CONFERENCE STIPULATION AND ORDER (Version dated 5-15-2017)

I. PRELIMINARY CONFERENCE: A Preliminary Conference was held in this case and the Court signed the Preliminary Conference Stipulation and Order on:

_____________ ,20 __ _

THE COMPLIANCE CONFERENCE: The Compliance Conference was held on this case:

_____________ ,20 __ _

The purpose of this New Model Status Conference Stipulation and Order is to assess the progress the parties have made and to determine what items are outstanding and what needs to he done to ensure that discovery is completed and the Note of Issue is filed in a timely fashion.

Plaintiff ----------- Index No.: ____ _ v. Defendant ---------- FIRST Status Conference

Stipulation and Order Page 2 of33

II. APPEARANCES: The parties entered their appearances at the Preliminary and Compliance Conferences. Since the last Conference:

(a) Counsel for Plaintiff __ HAS or __ HAS NOT changed.

(b) Counsel for Defendant _________ _

__ HAS or __ HAS NOT changed.

(c) Counsel for Defendant _________ _

__ HAS or __ HAS NOT changed.

Please use additional pages, if necessary.

FOR EACH NEW COUNSEL:

Please include (1) your name; (2) your firm's name; (3) your address; (4) your firm's telephone number; ( 5) your direct telephone number; ( 6) your e-mail address; and (7) the party you represent.


PLEASE INDICATE WHO IS APPEARING AT THIS STATUS CONFERENCE:

(a) Counsel for Plaintiff: _________________ _

Firm name: -------------------

Plaintiff Index No.: ------------ ------v. Defendant New Model Status ----------- Conference Order

Page 3 of33

(b) Counsel for Defendant _________________ _

Firm name: ---------------------

(c) Counsel for Defendant _________________ _

Firm Name: --------------------


III. CONFIDENTIALITY AGREEMENT:

The Model Confidentiality Order which is currently favored by the courts can be found at:

https:/ /www.nycourts.gov/rules/trialcourts/202. 70(g)%20-%20Rule%2011-g%20(attachment).pdf

The parties __ HA VE or ___ HA VE NOT entered into a Confidentiality Agreement.

The Court ___ HAS or ___ HAS NOT so ordered the Confidentiality Agreement and, if the Court has so ordered it, on what date did the Court so order it: ------------

IV. DESCRIPTION OF THE CASE:

In the Compliance Conference Order, the parties were asked what issues remained in the case AFTER the Motion to Dismiss was decided and the Appeal, if any, was perfected and/or decided.

In order to assess the status of the case after the preliminary motion practice, please describe what causes of action remain in the case and the amount of money demanded:

Plaintiff:

Plaintiff ___________ _ Index No.: _____ _ v. Defendant ----------- New Model Status

Conference Order Page 4 of33

Defendant

Defendant:

Have all the Appeals been decided? YES -- NO --

If NO: (1) whose appeal is it; (2) has the appeal been perfected; (3) when was the appeal argued or (4) when is the appeal scheduled to be heard?

IfYES: (1) Please attach a copy of the Appellate Division's decision; (2) has a party decided to appeal the First Department's decision to the Court of Appeals, and if so, what is the status of that appeal; (3) what causes of action remain in the case; and ( 4) what is the amount of damages currently being sought on plaintiffs claims and/or defendant(s)' counterclaims?

Plaintiff ----------- Index No.: _____ _ v. Defendant New Model Status


----------

V. DISCOVERY

(A) DOCUMENT DISCOVERY

Document Discovery was completed on:

(1) IfNOT COMPLETED, please explain why:

(2) By what date will be parties be able to complete Document Discovery:

The Court ACCEPTS THE NEW DATE FOR THE COMPLETION OF DOCUMENT DISCOVERY

DOES NOT ACCEPT THE DATE FOR THE COMPLETION OF DOCUMENT DISCOVERY

(The Court should place its initial on the appropriate line.)

If the New Date for the Completion of all Document Discovery is NOT agreed to by the Court, the Court hereby sets the following date as the NEW DATE FOR THE COMPLETION OF ALL DOCUMENT DISCOVERY

Court's Initial:

Plaintiff Index No.: ----------- ------v. Defendant New Model Status ----------


THE NEW DATE OF _______ FOR THE COMPLETION OF DOCUMENT DISCOVERY IS

ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

(B) DEPOSITIONS OF INDIVIDUALS

NAME

( 1) Depositions of Individuals were completed on:

(2) If Depositions of Individuals have not yet been completed:

(a) Please explain why they have not been completed:

(b) Please list the names of each individual persons, the names of all third-party witnesses and/or the names of all non-party persons who need to be deposed AND the date when those depositions will be held:

PLAINTIFF OR DEFENDANT OR3dPARTY WITNESS AND/OR NON-PARTIES

DATE DEPOSITION IS SCHEDULED TO BE HELD



----------


( c) Please list the date when the depositions of ALL INDIVIDUALS will be completed:

The Court ACCEPTS THE NEW DATE FOR THE COMPLETION OF INDIVIDUAL DEPOSITIONS

DOES NOT ACCEPT THE DA TE FOR THE COMPLETION OF INDIVIDUAL DEPOSITIONS


If the New Date for the Completion of all INDIVIDUAL DEPOSITIONS is NOT agreed to by the Court, the Court hereby sets the following date as the NEW DATE FOR THE COMPLETION OF ALL INDIVIDUAL DEPOSITIONS

Court's Initial:

THE NEW DATE OF _________ FOR THE COMPLETION OF INDIVIDUAL DEPOSITIONS IS ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESSSOORDEREDBYTHECOURT.

Plaintiff Index No.: ------------ ------v. Defendant New Model Status -----------


(C) DEPOSITION OF ENTITIES

Commercial Division Rule 11-f concerning Deposition of Entities went into effect on October 15, 2015. The new rule governs depositions of corporations, business trusts, estates, trusts, partnerships, limited liability companies, associations, joint ventures, public corporations, government, or government subdivisions, agencies or instrumentalities, or any other legal or commercial entities.

The Rule is intended to promote a more efficient process for deposition of entity representatives and reduce the likelihood of a mismatch between the infonnation sought and the witness produced.

The essential elements of the new Rule are detailed at pages 12 and 13 of the Compliance Conference Stipulation and Order.

(1) When did the parties serve the required notice or subpoena enumerating those matters to be the subject of the deposition of the entity "with reasonable particularity"?

Plaintiff:

Defendant: -----------

Defendant: -----------


(2) Have the parties COMPLETED the Entity Depositions?

YES NO --

(3) If YES, when were the Entity Depositions completed?

Plaintiff:

Plaintiff ------------ Index No.: _____ _ v. Defendant New Model Status


----------

Defendant ----------

Defendant ----------


(4) IfNO, WHEN will the Entity Depositions BE COMPLETED?

Plaintiff: Entities' Name -----------Deposition will be completed on: ______ _

Defendant Entities' Name -----------Deposition will be completed on: ______ _

Defendant Entities' Name -----------

Deposition will be completed on: ______ _

Please use additional pages, if necessary

The Court ACCEPTS THE NEW DATE FOR THE COMPLETION OF ENTITY DEPOSITIONS

DOES NOT ACCEPT THE DATE FOR THE COMPLETION OF ENTITY DEPOSITIONS


Plaintiff __________ _ v. Defendant _________ _

Index No.: _____ _ New Model Status Conference Order

Page 10 of 33

If the New Date for the Completion of all Entity Depositions is NOT agreed to by the Court, the Court hereby sets the following date as the NEWDATE FOR THE COMPLETION OF ENTITY DEPOSITIONS

Court's Initial:

THE NEW DATE OF _________ FOR THE COMPLETION OF ENTITY DEPOSITIONS IS ABSOLUTELY

FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

(D) OTHER DISCOVERY

(1) Please indicate what, if any, "Other Discovery" will be needed in this case pursuant to CPLR 3108 (Depositions by written questions or oral depositions obtained by commission or letters rogatory), CPLR 3120 (Inspection, testing, copying and photographing) and CPLR 3123 (Admissions as to matters of fact, paper, documents and photographs:

(2) Has ALL "Other Discovery'' been completed?

YES NO --

(3) IfNOT completed, when will it BE COMPLETED?


Conference Order Page 11 of 33

(E) DISCLOSURE DISPUTES

The Court reminds the parties of the Commercial Division Rule 14 concerning discovery disputes.

( 1) If the parties have availed themselves of the provisions of Rule 14, please outline the use of the Letter Writing mechanism SINCE the Compliance Conference Stipulation and Order was signed.

(a) When was letter Number written?

By whom?

About what?

When was the telephone conference held:

Was the issue resolved?

(b) When was Letter Number written?

By whom?

About what?

When was the telephone conference held:

Plaintiff ----------- Index No.: _____ _

v. Defendant New Model Status Conference Order

Page 12 of 33

----------

Was the issue resolved?


(F) IMPLEADER:

(1) When did Defendant serve its third-party summons and complaint:

(2) Has Impleader Discovery been Completed?

YES NO --

(3) If YES, when was it completed?

(4) IfNO, what remains to be done?

(5) When will this Impleader discovery be completed?

The Court ACCEPTS THE DATE FOR THE COMPLETION OF IMPLEADER DISCOVERY

DOES NOT ACCEPT THE DATE FOR THE COMPLETION OF IMPLEADER DISCOVERY



Page 13 of 33

----------

(The Court should place its initial on the appropriate line.):

If the New Date for the Completion of Imp leader Discovery is NOT acceptable, the NEW DATE FOR THE COMPLETION OF ALL IMPLEADER DISCOVERY is:

Court's Initial:

THE NEW DATE OF _______ FOR THE COMPLETION OF IMPLEADER DISCOVERY IS

ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESSSOORDEREDBYTHECOURT.

(G) ELECTRONIC DISCOVERY AND PRIVILEGE LOGS

(1) ELECTRONIC DISCOVERY

(a) Has Electronic Discovery been completed?

YES NO

(b) If YES, when was it completed?

(c) If NO, what exactly remains to be done?

( d) When will this Electronic Discovery be completed?

Plaintiff Index No.: ----------- ------v. Defendant New Model Status ----------

The Court


ACCEPTS THE DATE FOR THE COMPLETION OF ELECTRONIC DISCOVERY

DOES NOT ACCEPT THE DATE FOR THE COMPLETION OF ELECTRONIC DISCOVERY


If the New Date for the Completion oflmpleader Discovery is NOT acceptable, the NEW DATE FOR THE COMPLETION OF ALL ELECTRONIC DISCOVERY is:

Court's Initial:

THE NEW DATE OF _______ FOR THE COMPLETION OF ELECTRONIC DISCOVERY IS


(2) PRIVILEGE LOGS

One of the most time-consuming and costly aspects of discovery in complex commercial litigation cases is the creation and maintenance of privilege logs. Privilege logs are governed by Commercial Division Rule 11-b and/or CPLR 3122(b).

In the Compliance Conference Stipulation and Order, the Court outlined at pages 21 through 23 the differences between the Categorical versus Document-by Document approach to Privilege Logs. The court also included a recitation of what new Rule 11-b (a) includes for Categorical Privilege Logs and the requirements of



CPLR 3122 for Document-by-Document production.

(a) Commercial Division Rule 11-b, mandates that the parties meet and confer at the outset of the case and from time to time thereafter concerning the requirements of the creation and maintenance of Privilege Logs:

Did the parties meet and confer concerning Privilege Logs?

YES NO

IfYES, please provide the court with the date(s) when the parties met and conferred concerning Privilege Logs:

(b) At the Preliminary Conference, the parties chose:

(c)

THE CATEGORICAL or

DOCUMENT-BY-DOCUMENT

approach to the Privilege Logs.

(i) Rule 11-b clearly states that the preference in the Commercial Division is for the parties to use categorical designations where appropriate to reduce the time and costs associated with preparing privilege logs.

There are specific rules that must be followed to ensure that the documents contained in a categorical designation were properly placed in that category.



(ii) In the event the requesting party refuses to permit a categorical approach, and instead insists on a document-by-document listing on the privilege log, then the requirements of CPLR 3122 must be followed. In that circumstance, however, the producing party, upon showing of good cause, may apply to the Court for an allocation of costs, including attorneys' fees, incurred with respect to preparing a document-bydocument privilege log.

(iii) Even if a party insists on a document-by-document privilege log as contemplated by CPLR 3122, each uninterrupted e-mail chain shall constitute a single entry, and the description accompanying the entry shall include the following: ( 1) an indication that the e-mail chain

. represents an uninterrupted dialogue; (2) the beginning and ending dates and times ( as noted in the e-mails) of the dialogue; (3) the number of e-mails in the dialogue; and ( 4) the names of all the authors and recipients, together with sufficient identifying information about each person ( e.g., name of the employer, job title, person's role in the case) to allow for a considered assessment of the privilege issue.

While there are other important sections of the new Privilege Log Rule that will have to be considered and followed, these sections need not be repeated here.

( d) Have the Parties COMPLETED the Privilege Log using the chosen Categorical or Document-by-Document Privilege Log?

YES NO --



Page 17 of 33

----------

If YES, when was the Privilege Log completed and exchanged?

If NO, please explain the current status of the Privilege Log(s):

(e) FINAL DATE FOR THE COMPLETION OF THE PRIVILEGE LOG(S):

The Court ACCEPTS THE DATE FOR THE COMPLETION OF THE PRIVILEGE LOG.

DOES NOT ACCEPT THE DATE FOR THE COMPLETION OF THE PRIVILEGE LOG.


If the New Date for the Completion of Privilege Log is NOT acceptable, the NEW DATE FOR THE COMPLETION OF THE PRIVILEGE LOG is:

Court's Initial:

PRIVILEGE LOGS SHOULD HAVE BEEN COMPLETED BY THE COMPLIANCE CONFERENCE.

Plaintiff ----------- Index No.: ------v. Defendant New Model Status ----------


THE NEW DATE OF _______ FOR THE COMPLETION OF THE PRIVILEGE LOG IS


(H) END DATE FOR FACT DISCLOSURE

( 1) In the Preliminary Conference Order, the parties anticipated that the End Date for Fact Disclosure would occur on:

(2) In the Compliance Conference Stipulation and Order, the parties predicted that the End Date for Fact Disclosure would happen on

(3) Will this date be complied with? YES NO

(4) If the latest END DATE FOR FACT DISCLOSURE will NOT be met, then when do the parties believe the NEW END DATE FOR FACT DISCLOSURE should be:

The Court ACCEPTS THE NEW END DATE FOR FACT DISCLOSURE

DOES NOT ACCEPT THE NEW END DATE FOR FACT DISCLOSURE


Plaintiff Index No.: ------------ ------v. Defendant New Model Status ---------- Conference Order

Page 19 of 33

If the New End Date for Fact Disclosure is NOT agreed to by the Court, the Court hereby sets the following date as the NEW END DA TE FOR FACT DISCLOSURE:

Court's Initial:

THE NEW END DATE FOR FACT DISCLOSURE OF

IS ABSOLUTELY FINAL. NO ---------FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

(I) EXPERT DISCOVERY (if any):

Pursuant to Commercial Division Rules 8 and 13©, which mandate consultation with opposing counsel(s), the Court hereby ORDERS that if any party intends to introduce EXPERT TESTIMONY at trial or in support of a motion for summary judgment, the parties, no later than thirty (30) days ( and preferably earlier) prior to the completion of fact discovery shall confer on the identification of experts, the subject matter of the expert reports and the timetable for the deposition of testifying experts.

Unless otherwise stipulated or ordered by the Court, expert disclosure MUST be accompanied by a written report, prepared and signed by the witness. The witness shall state ( 1) that he or she is retained or specifically 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 expert report( s) MUST also contain:

Plaintiff ------------Index No.: _____ _


Page 20 of33

-----------

• a complete statement of all opinions the witness will express and the basis and reasons for them;

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

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

• the witness' qualifications, including a list of all publications authored in the previous IO years;

• 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

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

EXPERT-IN-CHIEF REPORTS

• If the litigants decide to retain experts to opine on the issues in the case, the "expert-in-chief' report(s), along with all necessary materials, information and disclosures must be exchanged on the same date, namely 30 days after the end of all FACT DISCOVERY or on a date the parties stipulate to exchange the reports AND the court has agreed to by so ordering the stipulation.

• Regardless of whether one or more of the litigants have decided not to retain experts to opine on the issues in the case, the litigants who have retained experts MUST provide their expert-in-chief report(s) (and all subsequent reports) to ALL litigants in the case.

• The litigant(s) who have exchanged expert-in-chief report(s) will have 15 days to exchange their rebuttal report( s) to their opposing party(ies)' expert-in-chief report(s ).

Plaintiff Index No.: ------------ ------v. Defendant New Model Status ----------

REBUTTAL REPORTS

Conf ere nee Order Page 21 of 33

• The parties who have prepared and exchanged Expert-in-Chief reports may submit a Rebuttal Report within 15 days after receiving the opposition( s)' Expert-in-Chief report( s ).

• If a litigant decides not to have an "expert-in-chief' opine on the issues in the case but, instead, decides to retain an expert only to rebut the expert-in-chiefs report, that rebuttal expert, if any, will be strictly limited to answering the opinions in the expert-in-chiefs report. The rebuttal expert will not be permitted to express any opinion other than to answer/rebut the opinions in the expert-in-chiefs report. The rebuttal expert's report must be exchanged 15 days

after the expert-in-chiefs report was disclosed.

• Finally, if a litigant decides only to use a rebuttal expert, the expert-inchief will be permitted to submit a reply to the rebuttal expert's report within 15 days after the rebuttal report but no later than 60 days after the close of FACT DISCOVERY or on a date the parties stipulate to exchange the reports AND the court has agreed to by so ordering the stipulation ..

Expert disclosure including ALL expert depositions shall be completed no later than four (4) months after the completion of Fact Discovery.

The Note of Issue and Certificate of Readiness may not be filed until the completion of expert disclosure.

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.



( 1) Do the Litigants anticipate preparing an Expert-in-Chief report?

Plaintiff:

YES NO

Defendant:

YES NO

Defendant:

YES NO


(2) If one party decides to prepare an Expert-in-Chief report, will the other party(ies) anticipate preparing a Rebuttal Report(s)?

Plaintiff:

YES NO

Defendant:

YES NO

Defendant:

YES NO


(3) The litigants who are preparing an Expert-in-Chief report MUST exchange that report along with all necessary materials, information and disclosures ON THE SAME DATE and 30 days after the close of



-----------

Fact Discovery unless the parties stipulate to exchange the reports on a different day AND the court has agreed to this by so ordering the stipulation.

(a) On what day will the parties be exchanging the Expert-in-Chief report:

(b) Do the parties exchanging Expert-in-Chief reports understand that they are obligated to provide all the litigants in the case with copies of their Expert-in-Chief report (and all subsequent reports and rebuttals)?

Plaintiff:

YES NO NIA --

Defendant:

YES NO NIA --

Defendant:

YES NO NIA --


(4) The parties who have received an Expert-in-Chief report may serve a Rebuttal Report on all litigants. Such a Rebuttal report may only address the opinions expressed in the Expert-in-Chief reports. The rebuttal reports must be served no later than 15 days after the Expertin-Chief reports unless the parties stipulate to exchange the reports on a different day AND the court has agreed to this by so ordering the stipulation.


Conf ere nee Order Page 24 of33

(a) On what day will the parties be exchanging the Rebuttal report to the Expert-in-Chief report:

(b) Do the parties exchanging Rebuttal reports to the Expert-inChief s report understand that they are obligated to provide all the litigants in the case with copies of their Rebuttal report ( and all subsequent reports and rebuttals)?

Plaintiff: YES NO NIA --

Defendant:

YES NO NIA --

Defendant:

YES NO NIA --


(5) The Experts who have prepared Expert-in-Chief reports are entitled to prepare Reply reports to the party(ies) who have submitted Rebuttal Reports. They must do so within 15 days of receiving the Rebuttal report.

(a) On what day will the parties be exchanging the Reply report to the Rebuttal report(s):

Plaintiff Index No.: _____ _ -----------

v. Defendant ---------- New Model Status Conference Order

Page 25 of33

(b) Do the parties exchanging Reply report(s) to the Rebuttal report(s) understand that they are obligated to provide all the litigants in the case with copies of their Reply report(s)?

Plaintiff: YES NO NIA --

Defendant:

YES NO NIA --

Defendant:

YES NO NIA --


NAME

( 6) Pursuant the Commercial Division Rule 13©, all persons who have submitted Expert-in-Chief reports; Rebuttal reports and/or Replies and who plan to be called to testify MUST make themselves available for depositions. The depositions must be conducted during the 4 months allocated to complete Expert Disclosure. Please indicate below when these Expert Depositions will take place.

OF EXPERT PLAINTIFF OR DEFENDANT{S)' EXPERT-IN-CHIEF OR REBUTTAL EXPERT

DATE DEPOSITION IS SCHEDULED TO BE HELD



----------


(7) Expert Disclosure must be completed within 4 months AFTER the close of FACT DISCLOSURE unless the parties stipulate to exchange the reports on a different day AND the court has agreed to this by so ordering the stipulation. The END DATE for EXPERT DISCLOSURE is:

The Court ACCEPTS THE END DA TE FOR EXPERT DISCLOSURE.

DOES NOT ACCEPT THE END DATE FOR EXPERT DISCLOSURE


If the End Date for Expert Disclosure is NOT agreed to by the Court, the Court hereby sets the following date as the END DA TE FOR EXPERT DISCLOSURE:

Court's Initial:

THE END DATE FOR EXPERT DISCOVERY OF

IS ABSOLUTELY FINAL. NO --------FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

Plaintiff __________ _ Index No.: _____ _ v. Defendant ---------- New Model Status


(J) END DATE FOR ALL DISCOVERY:

(1) In the Preliminary Conference Order, it was anticipated that the END DATE FOR ALL DISCOVERY would be completed by:

(2) In the Compliance Conference Stipulation and Order, it was anticipated the END DATE FOR ALL DISCOVERY would be:


(4) If the original END DATE FOR ALL DISCOVERY will NOT be met, when do the parties believe the NEW END DATE FOR ALL DISCOVERY will be?

The Court ACCEPTS THE NEW END DATE FOR ALL DISCOVERY

DOES NOT ACCEPT THE NEW END DATE FOR ALL DISCOVERY


If the New END DATE FOR ALL DISCOVERY is NOT agreed to by the Court, the Court hereby sets the following date as the NEW END DATE FOR ALL DISCOVERY?

Court's Initial

Plaintiff Index No.: ----------- ------v. Defendant New Model Status ---------- Conference Order

Page 28 of33

THE NEW END DATE FOR ALL DISCOVERY OF IS ABSOLUTELY FINAL. NO --------FURTHER ADJOURNMENTS OF ANY KIND WILL BE

PERMITTED UNLESS SO ORDERED BY THE COURT.

VI. FINAL DIRECTIVES

(A) NOTE OF ISSUE

(1) In the Preliminary Conference Order, it was anticipated that the NOTE OF ISSUE would be filed on:

(2) In the Compliance Conference Stipulation and Order, it was anticipated that the NOTE OF ISSUE would be filed on:


(4) If the latest NOTE OF ISSUE DATE will NOT be met, when do the parties believe the NEW NOTE OF ISSUE DATE should be:

The Court ACCEPTS THE NEW NOTE OF ISSUE DATE

DOES NOT ACCEPT THE NEW NOTE OF ISSUE DATE




Page 29 of33

----------

If the NEW NOTE OF ISSUE DA TE is NOT agreed to by the Court, the Court hereby sets the following date as the NEWNOTE OF ISSUE DATE

Court's Initial

THE NEW NOTE OF ISSUE DATE OF ______ _

IS ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

A copy of the Preliminary Conference Order and subsequent Compliance Stipulation and Order and ALL Status Conference Stipulations and Orders MUST be served and filed with the Note of Issue.

(B) DISPOSITIVE MOTION(S):

All dispositive motion(s) shall be made on or before ________ or within _______ days after the Note of Issue is filed.

Such motions may be filed by Order to Show Cause or Notice of Motion. The Court encourages the parties to confer and agree on the dates for the opposition and reply papers to be exchanged and e-filed.

PLEASE REMEMBER that if the parties intend to submit documents in a redacted or sealed form, the party MUST make a "Sealing Motion" pursuant to Section 216.1 of the Uniform Rules of the New York State Trial Courts. Nothing may be used in any document submitted to the Court in a sealed or redacted form WITHOUT a separate and written Order of the Court.



-----------

(C) STATUS CONFERENCE:

Parties or their representatives with knowledge of the case and the Preliminary Conference Order shall appear for a Status Conference on

Parties or their representatives with knowledge of the case and the Preliminary Conference Order shall also appear for all future Status Conferences.

(D) ADDITIONAL DIRECTIVES:

VII. ALTERNATIVE DISPUTE RESOLUTION

The Judges in the Commercial Division encourage all parties to work towards a proper and just resolution of the issues in the case. The judges of the Commercial Division believe that the parties are better served the earlier a proper and just resolution can be reached. Toward that end, the court asks the litigants in this case, on a continuous basis going forward, to consider any and all mechanisms to resolve the issues before them.



IN THE PRELIMINARY CONFERENCE ORDER AND COMPLIANCE CONFERENCE STIPULATION AND ORDER, THE PARTIES STATED:

(A) That they would be using the following alternative dispute mechanisms in this case: (I) a settlement conference; (ii) participation in the Commercial Division's Alternative Dispute Resolution Program (if applicable); and/or (iii) retention of a private mediator. Counsel for the parties stated they planned to use the following alternative dispute resolution mechanism for this case:

(B) The parties stated that they believed they would be ready to commence the proposed alternative dispute mechanism on or before the following event ( e.g., within sixty ( 60) days of the Preliminary Conference; thirty (30) days after document and interrogatory discovery was completed; when the depositions of the parties were completed on or before; or after the close of fact discovery and before the commencement of expert discovery).

(C) Please indicate when the settlement discussions or alternate dispute resolution mechanism is expected to commence:

If the latest SETTLEMENT DISCUSSIONS OR ALTERNATIVE DISPUTE MECHANISM DATE will NOT be met, when do the parties believe the NEW SETTLEMENT DISCUSSIONS OR ALTERNATIVE DISPUTE MECHANISM DA TE will be

Plaintiff ---------- Index No.: ------v. Defendant New Model Status ---------

The Court


ACCEPTS THE NEW SETTLEMENT AND/OR ADR DATE

DOES NOT ACCEPT THE NEW SETTLEMENT AND/OR ADR DATE


If the NEW SETTLEMENT DISCUSSIONS OR ALTERNATIVE DISPUTE MECHANISM DATE is NOT agreed to by the Court, the Court hereby sets the following date as the NEW SETTLEMENT DISCUSSIONS OR ALTERNATIVE DISPUTE MECHANISM DATE:

Court's Initial

THE NEW SETTLEMENT DISCUSSIONS OR ALTERNATIVE DISPUTE MECHANISM DATE OF _______ IS ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT.

******

THE DATES SET FORTH HEREIN MAY NOT BE ADJOURNED EXCEPT WITH THE APPROVAL OF THE COURT.

THE PARTIES MUST BRING COPIES OF ALL DISCLOSURE ORDERS TO ALL CONFERENCES.

Signatures of the parties and the Court are found on the following page.

Plaintiff ------------v. Defendant -----------

Index No.: ------New Model Status Conference Order

Page 33 of33

The dates set forth in the __ Status Conference Order are hereby:

Agreed to by: Counsel for Plaintiff

Agreed to by: Counsel for Defendant ---------------

Agreed to by: Counsel for Defendant ---------------


SO ORDERED:

DATE: -------J.S.C.

EXHIBITB

TO:

FROM:

RE:

DATE:

MEMORANDUM

COMMERCIAL DIVISION ADVISORY COUNCIL

The Subcommittee on Best Practices for Judicial Case Management

NEW MODEL STATUS CONFERENCE STIPULATION AND ORDER FORM

May 26, 2017

On October 19, 2015, the Administrative Board of the Courts approved the Model Status Conference ("SC") Order form for optional use in the Commercial Divisions of the New York State Supreme Court starting on December 1, 2015.

Since that time, the Commercial Division Advisory Council has recommended and the Administrative Board of the Courts has adopted a substantial number of new Rules affecting practice in the Commercial Division. Many of the new Rules were created in an attempt to streamline and modernize the discovery process.

As a result, a revised New Model Preliminary Conference Order "for optional use in the Commercial Division of the Supreme Court" was adopted by the Administrative Board on June 24, 2016 with the new form becoming effective on August 1, 2016. The Administrative Board also stated that "all prior versions (of the PC Order) are hereby repealed."

Subsequent to that, the Administrative Board sent out for public comment the New Model Compliance Conference Stipulation and Order form. The public comment period will end on May 30, 2017.

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As detailed in the transmission memo to the Compliance Conference Stipulation and Order form, the New Model Preliminary Conference Order, the New Model Compliance Conference Stipulation and Order form and now, the New Model Status Conference Stipulation and Order form have each attempted to reflect and incorporate the important improvements the Advisory Council have proposed and the Administrative Board of the Courts have adopted concerning the proper procedures to facilitate commercial litigation in New York State.

The new Model Status Conference Stipulation and Order has as its salient features:

1. The requirement that all parties to the New Model Status Conference stipulate and sign the document prior to the Court "So Ordering" the Status Conference Order.

2. Throughout each section of the document, the inclusion of new language stating that "THE NEW DATE OF _____ FOR THE COMPLETION OF _____ (Document Discovery; Entity Depositions; Completion of Electronic Discovery - to name a few sections)

IS ABSOLUTELY FINAL. NO FURTHER ADJOURNMENTS OF ANY KIND WILL BE PERMITTED UNLESS SO ORDERED BY THE COURT." This new language conveys to the litigants the importance of the selected dates and the need to adhere to these dates. It is hoped that these new dates will be considered mandatory by the litigants and the Court.

3. A completely new EXPERT DISCOVERY SECTION. This section provides the litigants with the rules concerning expert disclosure; the parameters of an expert report; the need for Expert-in Chief Reports as opposed to Rebuttal Reports; the timing for each of these reports; the need for and timing of the depositions of Expert witnesses and the End Date for Expert Discovery. This section is a comprehensive overview of Expert Discovery and will provide a mechanism for the creation and review of Expert Reports.

4. A reminder to the litigants that sealing motions should be made before dispositive motions after the filing of the Note of Issue.

5. Finally, the Alternative Dispute Resolution section forces the litigants to include dates for Settlement Discussions or meetings concerning Alternative Dispute Mechanisms. It is an attempt to seriously "encourage" the parties to earnestly work at resolving their differences.

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The New Model Status Conference Stipulation and Order Form is a continuation of the Preliminary Conference Order and Compliance Conference Stipulation and Order forms previously adopted by the Advisory Council and Administrative Board. It is comprehensive and therefore not a short document. It will provide the judges of the Commercial Division with a comprehensive overview of the topics which need to be addressed as discovery continues in the Courts.

Just as a reminder, the New Model Preliminary Conference Order included these new features:

1. A more streamlined section for the Description of the Case.

2. A completely revamped section on Discovery including:

• A new section incorporating the new Preamble to the Commercial Division Rules, 22 NYCRR 202. 70(g), particularly the admonition to "encourage proportionality in discovery . .. ";

• New language for Document Production pursuant to Rule 11-e(a), 202. 70(g)(l l-e )(a);

• New language concerning Interrogatories, Rule 11-a, 202. 70(g)(l 1-a);

• A new section concerning Deposition of Individuals including the limitation, without prior court approval, as to the number of depositions and the length of time for each deposition, Rule 11-d, 202. 70(g)(l 1-d);

• Another section concerns Deposition of Entities which outlines a creative mechanism to streamline the gathering of discovery information from all forms of business entities, Rule 11-f, 202. 70(g)(l l-t). The proposed new Rule is outlined in detail in order to provide both the Bench and the Bar with the tools necessary to secure infonnation from these entities;

• The new Revised Model PC Order form also includes information on how to address Disclosure Disputes pursuant to Rule 14, 202. 70(g)(l 4);

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• The section on Electronic Discovery and Privilege Logs has been completely reworked to condense the previous section pursuant to Rule 8(b ), 202. 70(g)(8)(b ), and to incorporate the Categorical or Document-by-Document approach to Privilege Logs pursuant to Rule 11-b, 202.70(g)(ll-b); and

• The section on Expert Discovery has been modified to remind the parties that there are rules that must be followed in a timely fashion, Rule 13(c), 202.70(g)(l3)(c).

3. A reworked Section on Alternative Dispute Resolution to focus the parties on the methods to be used and timing of the use of Alternative Dispute Resolution.

4. Finally, there is a new section concerning Additional Directives emphasizing the need to inform the court of disposition of cases and the absolute need to sign up for the FREE eTrack notification system in the Court system.

The New Model Compliance Conference Stipulation and Order which is presently out for public comment closely tracked the New Revised Model Preliminary Conference Order. It provides, as one of its main new features, that the lawyers on the case sign the Stipulation before the Court "So Orders" the form. The idea behind this revision is to encourage a closer participation in the discovery process by the attorneys in the case.

Each section of the new Model Compliance Conference Stipulation and Order attempts to further discovery by including special features:

1. A new section on Appearances streamlines the mechanism to report changes in representation. It also includes, for the first time, a section on who is appearing for the Compliance Conference. This will encourage, it is hoped, that the same attorneys appear for subsequent conferences.

2. The Confidentiality Agreement section contains the cite to the new Confidentiality Order.

3. The section on the Description of the Case is greatly expanded to include defendant's legal theory and current status of the case.

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4. The section on Deposition of Individuals requires specificity, as it concerns the scheduling of depositions.

5. The section on Deposition of Entities requires the parties to set forth the actual date a party served a notice or subpoena; and the name of the individual representing the entity, their title and whether the individual consents to representing the entity- a requirement under the rule.

6. The section on Disclosure Disputes, which outlines the mechanism for dispute resolutions in discovery matters, has a new section outlining the dates the parties used the letter writing mechanism.

7. The Imp leader section has been expanded to include more discovery dates.

8. The section on Electronic Discovery remains largely the same, except for the dates of completion of electronic discovery, but the section on Privilege Log has been expanded to include actual dates for the completion of the log.

9. The other sections include the same types of questions concerning completion of the work, except that under the Dispositive Motion Section, there is language concerning the issue of Sealing portions of documents that the parties intend to rely on in their dispositive motions.

The Best Practices Subcommittee respectfully requests that the new Revised Model Status Conference Stipulation and Order form, attached hereto, be considered for adoption.

The Best Practices Subcommittee

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