Recent and Pending Amendments to New York’s Civil Practice Law and Rules and Uniform Commercial Division Rules

(230 Ratings)

Produced on: July 29, 2016

Course Format On Demand Audio

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Course Description

Time 62 minutes
Difficulty Advanced

Although the trend in U.S. civil practice during the past hundred years undoubtedly has hewed toward procedural uniformity across jurisdictions, with some thirty-five states having adopted civil-procedure regimes based in large part on the Federal Rules of Civil Procedure, the New York legislature apparently has not seen fit to adopt a procedural regime that tracks the federal model. Indeed, New York’s Civil Practice Law and Rules (“CPLR”) may be the most prominent example of a modern state-court procedural regime that finds its roots in sui generis rulemaking, rather than adherence to the federal model. At the same time, certain recent amendments to the Commercial Division Rules, which supplement and, in some instances, modify, the standards under the CPLR as applied to substantial commercial disputes pending in New York’s Commercial Division courts, suggest a trend toward increasing conformity with existing rules of federal practice, at least insofar as the litigation of such commercial disputes is concerned.

In this program, attorneys Jennifer H. Rearden and Gabriel Herrmann of Gibson, Dunn & Crutcher LLP summarize the key components of several recent and pending amendments to both the CPLR and the Commercial Division Rules, and assess their potential impact on future civil practice in the New York courts. 



Learning Objectives:

  1. Review new provisions relating to Alternative Dispute Resolution
  2. Understand the recent amendments underscoring the need for greater cooperation, as well as new guidelines for raising disclosure disputes with the court
  3. Summarize the amendments relating to responses and objections to document requests
  4. Evaluate New York’s latest rule amendments governing electronic case commencement and filing of litigation papers
  5. Assess the extent to which evolving rule provisions governing commercial practice in New York’s Commercial Division courts actually reflect a trend toward conformity with rules of federal practice, rather than adherence to New York’s existing procedural regime


Faculty

Jennifer H. Rearden

Gibson, Dunn & Crutcher LLP

Jennifer H. Rearden, a partner resident in Gibson, Dunn & Crutcher's New York office, is a member of Gibson Dunn's Litigation and Crisis Management Practice Groups, and is Co-Chair of Gibson Dunn's Electronic Discovery and Information Law Practice Group. She also serves on Gibson Dunn's Partnership Evaluation, Hiring and Compensation Committees.

Ms. Rearden represents clients in complex business litigation, including securities fraud, hostile M&A, and disputes with states and municipalities, as well as internal investigations. She has argued before multiple federal and state courts and administrative bodies, and has tried cases to judges and juries. Ms. Rearden's practice also frequently includes assisting clients in responding to high-profile events and evaluating legal risk, and counseling clients regarding crisis management planning and effective crisis response. Among the high-profile matters in which Ms. Rearden has been involved was the Cablevision and Madison Square Garden trial-level and appellate litigation challenging and ultimately defeating New York City's sweeping proposal to build a new stadium for the New York Jets on Manhattan's West Side, and the successful defense of Cablevision and the Garden in a $100 million antitrust suit brought by the Jets over their failed stadium bid. She is also part of the Gibson Dunn team that represented Chevron Corporation in its successful effort to block enforcement of a 2003 judgment for $9.2 billion in an environmental case in Ecuador.

Ms. Rearden received her Juris Doctor from New York University School of Law, where she was a member of the Journal of International Law and Politics. She graduated magna cum laude from Yale University with a Bachelor of Arts degree in History. Ms. Rearden serves on the boards of the Yale Club of New York City, Copland House and the NYU Law Alumni Association. She is a member of The Sedona Conference® Working Group 1 on Electronic Document Retention and Production, The Sedona Conference® Working Group 6 on International Electronic Information Management, Discovery and Disclosure, and the New York State Bar Association Committee on Electronic Discovery.

Ms. Rearden is the author of "Subprime-Related Securities Class Actions and Derivative Suits," a chapter in Practicing Law Institute's treatise, Securities Litigation:  A Practitioner's Guide, and she frequently publishes and speaks on securities litigation and electronic discovery, as well as other subjects. Ms. Rearden is a member of the bars of the States of New York, Connecticut, and Georgia and of the United States District Courts for the Southern and Eastern Districts of New York and the Northern District of Georgia. She is also a member of the Association of the Bar of the City of New York.

 

Other significant matters include: 

  • National Association of Securities Dealers (NASD) (now the Financial Industry Regulatory Authority):  Assisted client in defeating putative class actions relating to the consolidation of NASD's member regulatory functions with those of NYSE Regulation, Inc.
  • Home Depot:  Representation of Home Depot in a series of administrative, trial-level and appellate matters in states across the country where Home Depot was denied refunds of sales tax payments on private label credit card transactions in which the customers ultimately defaulted.  These matters are ongoing.
  • Verizon:  Successful motion to dismiss more than a dozen causes of action against Verizon, sounding primarily in fraud, misrepresentation, breach of contract and quasi-contract, in a major real estate dispute.
  • Barclays:  Representation of Lehman Brothers, and subsequently, Barclays, in connection with the Chapter 11 proceedings of Asarco, LLC, including in a trial relating to Barclays's fees.
  • Philip Morris USA:  Successful challenge, on federal preemption grounds, of a New York City regulation requiring tobacco retailers to post graphic antismoking signs at the point of sale.
  • Hudson River Park Trust:  Successful motion to dismiss Chelsea Piers, L.P.'s lawsuit against the Hudson River Park Trust, a public benefit corporation, which sought to shift the ultimate burden of commercial pier repairs to New York State (affirmed on appeal).
  • New York Skyline, Inc.:  Successful appeal for New York Skyline, Inc., a vendor of a virtual tour of New York City, obtaining a unanimous reversal from New York's Appellate Division, First Department of a ruling of the New York State Supreme Court that threatened to put Skyline out of business.  Gibson Dunn convinced the First Department to overturn the lower Court's ruling that general vendor licenses (which are most difficult and time-consuming to obtain) were required for sidewalk ticket sales.
  • Edison Properties:  Successful litigation against the New York Department of Environmental Conservation in respect of its denial of Edison's application to participate in the Brownfield Cleanup Program (which provides for the clean-up and redevelopment of underutilized contaminated properties, including liability relief and tax credits).
  • Maxwell Shoe Company, Inc.:  Representation of Maxwell Shoe in connection with its defense of an unsolicited merger proposal from Jones Apparel Group.
  • Atlantic Coast Airlines Holdings, Inc.:  Representation of Atlantic Coast in its successful effort to fend off a hostile takeover attempt by Mesa Air Group.
  • ArvinMeritor:  Representation of ArvinMeritor in its attempted takeover of Dara Corporation.

Recent Publications

  • Author, "Spoliation Standards Under The New Rule 37(e)," Law360, October 28, 2015.
  • Author, "Stockholder Ratification of Compensation for Non-employee Directors," Delaware Business Court Insider, May 20, 2015.
  • Author, "How Litigants Should Approach Categorical Privilege Logs," New York Commercial Litigation Insider, September 22, 2014.
  • Author, "Nonparty Depositions: From 'Potted Plant' Rule to Venus Fly Traps," New York Commercial Litigation Insider, September 8, 2014.
  • Author, "2014 Mid-Year eDiscovery Update:  Is This the 'Year of Technology' in eDiscovery?" Bloomberg BNA's Digital Discovery & e-Evidence, July 2014.
  • Author, "Litigation Legal Holds and 'Bring Your Own Device'," Bloomberg BNA's Digital Discovery and e-Evidence on April 10, 2014.
  • Author, "Chancery Continues Fight to Remain Leader in Business Dispute Resolution," Delaware Business Court Insider, February 19, 2014.
  • Author, "Chancery Court in Brookstone Underscores Privacy of Comity and Efficiency," Delaware Business Court Insider, December 27, 2012.
  • Author, "Growing Trend Favors Disclosure of Witnesses' Identities," ABA Securities Litigation Newsletter, Fall 2012.
  • Author, "Subprime-Related Securities Class Actions and Derivative Suits," Securities Litigation:  A Practitioner's Guide (2012).
  • Author, "Non-Party . . . Party? When It Comes to Deleted ESI, Is There a Difference Anymore?" Bloomberg BNA, April 2012.
  • Author, "How (Not) to Lose Data and Alienate Judges," Law Technology News, April 2011.
  • Author, "Scheindlin's 'Day Laborer' Decision:  Much Ado About Metadata," Law Technology News, February 2011.
  • Author, "Oh No, Ephemeral Data!," New York Law Journal, March 2010.
  • Author, "If The Sedona Conference Builds It, Will They Cooperate?  Year in Review," New York Law Journal, 2009.
  • Author, "Judge Issues a 'Wake-Up Call' to New York Lawyers:  When It Comes to Search Terms, Play Nice and Plan Ahead," Bloomberg:  New York Law, 2009.
  • Author, "Trends in Subprime-Related Securities Fraud Actions," Law360, 2008.

Recent Speaking Engagements

  • Speaker, "Developments (and Sometimes Disasters) in High-Tech E-Discovery:  Risks, Consequences and Better (or Worse) Practices," Legal Malpractice & Risk Management Conference (March 6, 2014).
  • Speaker, "The Global Embrace: Security & Strategy in Cross-Border eDiscovery," Thomson Reuters Conference Invitation - 17th Annual eDiscovery Forum (December 12, 2013).
  • Moderator, "Tackle the Review Process: Learn from Industry Leaders How It's Done," New York Law Journal webinar (December 9, 2013).
  • Speaker, "Roadmap to Defensible Deletion And Efficient Retention Of Company Data," Association of Corporate Counsel America, (November 5, 2013).
  • Moderator, "New Normal:  Big Data and the Future of Litigation," New York Law Journal webinar (April 15, 2013). 

Gabriel Herrmann

Gibson, Dunn & Crutcher LLP

Gabriel Herrmann is an associate in the New York office of Gibson, Dunn & Crutcher and a member of the Firm’s Litigation Practice Group. His practice focuses on complex business litigation and arbitration in areas such as antitrust, insurance and reinsurance, breach of contract, business torts, employment, intellectual property, hostile M&A, and ERISA. He also has significant experience representing clients in matters relating to the operations of New York State and City governmental entities, including both administrative challenges to agency determinations and constitutional challenges to government action and legislation.

Mr. Herrmann earned his Juris Doctor, cum laude, from the Cornell Law School in 2003, where he served as an Article Editor of the Cornell Law Review and published a Note, Discovering Policy Under the Federal Arbitration Act, 88 Cornell L. Rev. 779 (2003). He received a Bachelor of Arts degree from Clark University in 1998. 

Mr. Herrmann is admitted to practice in the State of New York and before the United States District Courts for the Southern and Eastern Districts of New York. He is a member of the Association of the Bar of the City of New York, the American Bar Association, and the ABA Section of Antitrust Law.

Reviews

SW
Stuart W.

Done well!

IP
Ian-Paul P.

Solid presentation. Might be a good idea to update given new changes, like e-file in the First Department.

EO
Elizabeth O.

Excellent

GE
George S E.

Excellent presentation

AS
Alan S.

Excellent presentation without self-promotion.

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