Depositions: A New Direction for New York

by ASchlossberg on February 9, 2015

Depositions: A New Direction for New York

New York City’s lawyers are making a significant change on the deposition front.

A new deposition rule for the New York Commercial Division is on the horizon. Effective April 1, 2015, under Administrative Order 336a/14, New York courts will enact Rule 11-d of Section 202.70(g) per a December 22, 2014 Order by the Chief Administrative Judge of the Courts, A. Gail Prudenti.

The new rule limits parties to taking 10 depositions for up to 7 hours per person. Moreover, where several agents of a corporate entity are deposed on the corporation’s behalf, the Court will treat this as a single deposition. See 11-d(c).

Also of note is Administrative Order 05/15, which amended paragraph (g) of the preamble to the Commercial Division Rules, also effective April 1, 2015, which added that “the businesses, individuals and attorneys who use this Court have expressed their frustration with adversaries who engage in dilatory tactics, fail to appear for hearings or depositions, unduly delay in producing relevant documents, or otherwise cause the other parties in a case to incur unnecessary costs. The Commercial Division will not tolerate such practices…” See 202.70(g).

Currently, the courts are guided by a very broad standard of discovery. Although Rule 11-d allows exceptions for longer depositions by way of stipulation or by the order of Commercial Division judges for “good cause,” this new rule will nonetheless have a profound effect. One of the driving forces behind this rule was the desire to make the Commercial Decision an attractive alternative to federal and Delaware state courts.

Because of the broad rules governing depositions, adverse parties are permitted to ask questions about seemingly insignificant and unrelated matters that ultimately would not be allowed into evidence based upon the justification that these questions may lead to other admissible evidence. The effect of this can be profound. For example, guides written to help potential deposition witnesses harp on attorneys’ efforts to exploit one’s legal inexperience in order to garner accidental admissions.

The importance of depositions and the psychological effect a lengthy deposition can have on an individual is significant, making these changes to depositions noteworthy. Due to the unlikelihood of a case ever reaching trial where testimony will be heard, depositions can be the most significant testimonial evidence in a lawsuit. Additionally, the psychological effects of a lengthy deposition can be substantial. Countless mental health professionals have stated unequivocally that depositions are unpleasant, stressful, and unnerving experiences.

Since the new rules adopted by the Commercial Division seem to aide in prohibiting depositions from being used as an abusive tactic, it is likely that New York will see an influx in commercial cases.

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The Law Office of Aaron M. Schlossberg, P.C. 

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship.)

Aaron Schlossberg focuses on complex commercial and insurance coverage matters involving corporate clients, entrepreneurs and individual policyholders. Mr. Schlossberg drafts and negotiates high-level contract documents and appears frequently in state and federal courts throughout New York State. Mr. Schlossberg earned his Bachelor of Arts Degree in English from The Johns Hopkins University and his Juris Doctorate Degree from the George Washington University Law School. Mr. Schlossberg gained invaluable insight during his post-graduate judicial clerkship and significant experience as an associate with two midtown Manhattan law firms prior to founding the Law Office of Aaron M. Schlossberg, P.C. in June 2012. Mr. Schlossberg is a published author and a seasoned presenter. He is fluent in Spanish, conversational in French and has basic knowledge of Mandarin Chinese and Hebrew. Mr. Schlossberg is a member of the New York State Bar Association and is admitted to the following courts: New York State, Eastern and Southern Districts of New York, United States Court of Appeals for the Second Circuit.

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