Commercial Litigation Update

The New York County Commercial Division rules differ materially from rules in New York County generally and, over time, have come to mirror the more stringent federal demands. One such key difference is with respect to expert disclosures, specifically Rule 13(c), which can be a disastrous trap for those unfamiliar with its requirements.

Most practitioners are familiar with CPLR § 3101(d), governing expert disclosure in New York generally, which does not require a written report but only that the expert disclosure—traditionally drafted by counsel—state “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.” In contrast, New York County’s Commercial Rule 13(c) requires that, “[u]nless otherwise stipulated or ordered by the court, expert disclosure must be accompanied by a written report, prepared and signed by the witness, if either (1) the witness is retained or specially employed to provide expert testimony in the case, or (2) the witness is a party’s employee whose duties regularly involve giving expert testimony.” Rule 13(c) also sets forth certain requirements for the content of the report. Specifically, “[t]he report must contain:

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

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

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

(D) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(E) 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

(F) a statement of the compensation to be paid to the witness for the study and testimony in the case.”

By now, most New York practitioners are aware (or at least have heard) of the recent changes to CPLR 2106, which was amended as of January 1, 2024 to allow “any person” to submit an affirmation “in lieu of and with the same force and effect” as an affidavit in an action in New York.

This was a privilege previously reserved for New York attorneys, certain licensed professionals, and those physically located outside the United States. While the majority of the focus understandably has been on the impact of this legislation on litigants and other individuals who are no longer required to submit affidavits, the amendment also has the serious, but often overlooked, consequence of rendering the form of prior New York attorney affirmations ineffective and not properly sworn unless the affirmations contain the new, revised language required by the amendment.

Shareholders who sue derivatively on behalf of a corporation are often faced with counterclaims against them as individuals. The issue of whether such counterclaims are properly interposed against a shareholder in their individual capacity is not typically a heavily contested issue in New York. However, this may soon change as a result of a recent decision in the case of Jean-Pascal Simon v. Francinvest, S.A., et. al., 2023 N.Y. Slip. Op. 32422[U] (Sup. Ct. N.Y. Co. July 7, 2023), where the court was confronted with arguments about the feasibility of such countersuits and ...

Almost nine months ago, on June 13, 2022, the U.S. Supreme Court issued a long awaited decision in ZF Automotive US, Inc. v. Luxshare, LTD. that sought to resolve a decades-old circuit split regarding whether 28 U.S.C. § 1782 – which permits litigants to obtain evidence in the U.S. “for use in a proceeding in a foreign or international tribunal” – applies to private, commercial international arbitrations. Practitioners were initially hopeful that the Supreme Court had conclusively resolved this issue when it unanimously held that only bodies “that exercise governmental authority” constitute a “foreign or international tribunal” under section 1782, which meant that parties engaged in private, commercial arbitrations and ad hoc arbitrations abroad could not use the statute to obtain discovery from companies and individuals in the U.S. However, in doing so, the Court left open the possibility that “sovereigns might imbue an ad hoc arbitration panel with official authority,” leaving courts (and litigants) to grapple with the question of whether and when a foreign body may be imbued with governmental authority sufficient to constitute a foreign or international tribunal for purposes of section 1782 discovery. Few courts have addressed this lingering question in the aftermath of ZF Automotive, and those that have have interpreted the decision very restrictively, indicating that the universe of international arbitrations that section 1782 now covers may be considerably narrower than it has been in the past.