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FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022
EXHIBIT 3
FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022
BEFORE THE DISCOVERY REFEREE
WILLIAM P. HARRINGTON
WESTCHESTER COUNTY, NEW YORK SUPREME COURT
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK, AS ADMINISTRATORS )
OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018
PAUL BENJAMIN, ON BEHALF OF THEMSELVES )
AND ALL OTHERS SIMILARLY SITUATED, )
) DISCOVERY REFEREE MOTION:
PLAINTIFFS, ) NO. 19-002
)
V. ) ORAL ARGUMENT REQUESTED
)
HOULIHAN/LAWRENCE, INC., )
)
DEFENDANT. )
HOULIHAN LAWRENCE’S MOTION TO PERMIT TECHNOLOGY ASSISTED
REVIEW (No. 19-002)
The Discovery Referee has worked to establish a protocol by which Plaintiffs propose six
search terms, Houlihan Lawrence reviews the search terms (as applied to particular custodians)
for overbreadth or undue burden, and Houlihan Lawrence raises appropriate burden or other
concerns with the Referee for prompt adjudication. This protocol has been followed in the prior
years and has yielded eighteen reports and recommendations, each designed to put discovery
behind us and to move this case forward under the Referee’s capable eye.
Unfortunately, Plaintiffs’ search term list continues to balloon. Instead of the six search
terms originally envisioned by the Referee in 2018, Plaintiffs’ list now contains 166 search
terms. Houlihan Lawrence is committed to working within the parameters established by the
Referee, which have served the parties well for the past several years in this matter. That is why
Houlihan Lawrence has not moved to modify or quash 132 of the 166 search terms. Houlihan
Lawrence requests commonsense modifications to the other 34, as described in contemporaneous
Motion 19-003.
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But the 166 search terms are poorly written, whether modified or not. All parties, the
Referee, and the Court have stated their sincere desire to move this case forward in an
expeditious manner. One way to streamline the review of the results of the lackluster 166 search
terms is to apply technology assisted review to “sort” or “rank” the “hit” documents. The
computer “learns” from the human inputs and predicts the responsiveness of each “hit”
document. By continuously “re-ranking” the documents, we can ensure that human review is
used in the most efficient way possible: by reviewing the most potentially responsive/relevant
documents, and by not wasting time on those documents that are very likely
unresponsive/irrelevant.
Technology assisted review is expressly embraced by the Court, and the parties are
permitted to consider it at any time “throughout the discovery period.”1 Here, Plaintiffs have
utilized 166 search terms and ten custodians. Houlihan Lawrence seeks to employ Technology
Assisted Review to “rank” the resulting documents in order from most relevant to least relevant,
ensuring that HL’s manual, linear review is focused on the most relevant documents. Plaintiffs
attempt to reject this protocol. But the rules direct that parties “employ search terms and other
search methodologies (e.g., TAR) reasonably designed to identify evidence that is material to the
dispute.”2 Plaintiffs’ claim that TAR and search terms are mutually-exclusive “alternatives” is
thus contraindicated by the rules.
Plaintiffs must show that Houlihan Lawrence’s TAR Protocol is “manifestly
unreasonable.” Because Plaintiffs have made no attempt to show that the TAR Protocol is
“manifestly unreasonable,” the Referee should quash Plaintiffs’ objection and permit the TAR
1
§ 202.70 Rule 11-c(f), attached as Exhibit B, at page 10.
2
§ 202.70, Appendix A subsection V(D–E), attached as Exhibit B, at page 24.
2
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Protocol to proceed. This will allow the parties to continue to apply the Referee’s ESI procedures
as in past years and for the document review to commence in an efficient manner.
NEW YORK AUTHORITIES
The courts of this State “encourage[]” all parties “to use the most efficient means to
review documents,” expressly “includ[ing] technology-assisted review, including predictive
coding.” § 202.20-c(e), attached as Exhibit A, at page 1. The Commercial Division is even more
explicit in its endorsement of TAR, ordering that the parties “shall confer” “as needed
throughout the discovery period[] about technology-assisted review mechanisms they propose to
use in document review and production.” § 202.70 Rule 11-c(f), attached as Exhibit B, at page
10 (emphasis added). Elaborating, the Commercial Division has pronounced:
D. The parties should exchange reasonable information about a
party’s process for searching and reviewing ESI, including search
terms to be used, filtering out of certain file types, date filters,
deduplication, email thread suppression, and the use of technology
assisted review (TAR) to aid in the review process.
E. Consistent with Rule 11-c(f), the parties are encouraged to use
efficient means to identify ESI for production. The parties should
tailor searches of ESI to (a) apply to custodians whose ESI may
reasonably be expected to contain evidence that is material to the
dispute and (b) employ search terms and other search
methodologies (e.g., TAR) reasonably designed to identify
evidence that is material to the dispute. So that use of TAR is not
unjustifiably discouraged, its use should not be held to a higher
standard than the use of search term keywords or manual review.
§ 202.70, Appendix A subsection V(D–E), attached as Exhibit B, at page 24 (emphasis added).
The reason for these rules is clear: “the responding party knows best what kinds and
volume of documents it has, how they are stored, and what it will cost to review them,” and thus
“responding parties are best situated to evaluate the procedures, methodologies, and technologies
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appropriate for preserving and producing their own electronically stored information.” NY
Orders 2018-6 at 5, attached as Exhibit C, at page 5. (citation omitted, alteration adopted).
THE CHALLENGE PROCEDURE AND BURDEN OF PROOF
The Subcommittee on Procedural Rules to Promote Efficient Case Resolution has stated
that a responding party “is best placed to analyze in the first instance what it believes to be the
most efficient means to review its own documents.” NY Orders 2018-6 at 5, attached as Exhibit
C, at page 5. (citation omitted, alteration adopted). The Subcommittee notes that a requesting
party may “challeng[e] those means as inadequate or a production as incomplete,” which
challenge should show that “the responding party's choice is manifestly unreasonable or…the
resulting production is deficient.” Id. (emphasis added).
Thus, the Subcommittee envisions the following procedure for challenging a party’s TAR
Protocol:
(1) The responding party (HL) analyzes in the first instance what it believes to be the
most efficient means to review its own documents.
(2) The requesting party (Plaintiff) initiates a challenge to those means as inadequate or a
production as incomplete.
(3) The requesting party (Plaintiff) must demonstrate that the responding party’s (HL’s)
choice is manifestly unreasonable or that the resulting production is deficient.
Because the production here has not yet taken place, the procedure and burden can be
narrowed even further for present purposes: Plaintiffs must show that Houlihan Lawrence’s
TAR Protocol is manifestly unreasonable.
PLAINTIFFS HAVE FAILED TO MEET THEIR BURDEN TO SHOW THAT
HOULIHAN LAWRENCE’S TAR PROTOCOL IS “MANIFESTLY UNREASONABLE.”
Plaintiffs make no attempt to show that Houlihan Lawrence’s TAR Protocol is
“manifestly unreasonable.” Houlihan Lawrences addresses each of Plaintiffs’ complaints in order
in the table below. Houlihan Lawrence does not respond to Plaintiffs’ personal attacks or
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aspersions, as the Discovery Referee has instructed repeatedly that such outbursts are not
productive and will not be considered.
Plaintiffs’ Complaint Response
TAR and search terms • The Rules expressly endorse the use of “search
are mutually exclusive terms and other search methodologies (e.g.,
alternatives (Vest 9/16 TAR) reasonably designed to identify evidence
at 6-7) that is material to the dispute.” § 202.70,
Appendix A subsection V(D–E), attached as
Exhibit B, at page 24 (emphasis added).
• Courts approve methodologies using both
TAR and search terms. See, e.g.:
o In re Arby’s Rest. Grp., No. 1:17-mi-
55555, 2018 U.S. Dist. LEXIS 233650,
at *15 n.2 (N.D. Ga. Aug. 16, 2018)
(“These all-ESI searches involve using
search terms, date range, and
Technology Assisted Review.”).
o In re Biomet M2a Magnum Hip
Implant Prods. Liab. Litig., No. 3:12-
md-2391, 2013 U.S. Dist. LEXIS
172570, at *1-2 (N.D. Ind. Aug. 21,
2013) (where party first used “keyword
culling” and “de-duplication” and then
“turned to technology-assisted review,
or ‘predictive coding,’” party did not
need to “go back to square one in its
document production and use
predictive coding”).
o Channel Medsystems v. Boston Sci.
Corp, No. 2018-0673-AGB, 2019 Del.
Ch. LEXIS 391, at *7 (Del. Ch. Jan. 7,
2019)3 (party “shall employ human
review and search terms” and “will also
use technology assisted review as is
reasonably necessary”).
o In re MacBook Keyboard Litig., No.
18-cv-02813, 2019 U.S. Dist. LEXIS
106154, at *3-4 (N.D. Cal. June 21,
3
Signed order attached as Exhibit D.
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Plaintiffs’ Complaint Response
2019) (Apple utilized search terms and
technology assisted review).
TAR must have been • The Rules expressly permit a responding party to disclose
disclosed at some TAR “as needed throughout the discovery period[] about
earlier time (Vest 9/16 technology-assisted review mechanisms they propose to use
at 7-8) in document review and production.” § 202.70 Rule 11-c(f),
attached as Exhibit B, at page 10 (emphasis added).
Plaintiffs get to direct • The responding party, Houlihan Lawrence, “knows best what
the content of the kinds and volume of documents it has, how they are stored,
TAR Protocol (Vest and what it will cost to review them.” NY Orders 2018-6 at 5,
9/16 at 8) attached as Exhibit C, at page 5. Therefore, Houlihan
Lawrence is “best situated to evaluate the procedures,
methodologies, and technologies appropriate for preserving
and producing [its] own electronically stored information.”
Id.
• Although conferring and agreeing is “encouraged,” it is not
required. Id. If an agreement cannot be reached, Plaintiffs
bear the burden of showing that Houlihan Lawrence’s TAR
Protocol is “manifestly unreasonable.” Id. They have not done
so.
Houlihan Lawrence’s • Plaintiffs provide no support for this conclusion.
TAR Protocol is
“fatally defective”
(Vest 9/16 at 8)
CONCLUSION
Because Plaintiffs have made no showing that Houlihan Lawrence’s TAR Protocol is
“manifestly unreasonable,” the TAR Protocol should be permitted to streamline these
proceedings.
Dated: September 23, 2022
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/s/Robert D. MacGill
Robert D. MacGill (pro hac vice)
Matthew T. Ciulla (pro hac vice)
MACGILL PC
156 E Market St
Suite 1200
Indianapolis, IN 46204
Phone: (317) 721-1253
Alfred E. Donnellan, Esq.
Nelida Lara, Esq.
One North Lexington Avenue, 11th Floor
White Plains, New York 10601
Phone: (914) 681-0200
Attorneys for Defendant
7
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NY CLS Unif Rules, Civil Cts § 202.20-c
This document reflects all changes received as of August 31, 2022
NY - New York Court Rules > Uniform Rules for the New York State Trial Courts > Part 202.
Uniform Civil Rules for the Supreme Court and the County Court
§ 202.20-c. Requests for Documents [Effective until July 1, 2022]
(a) For each document request propounded, the responding party shall, in its Response and Objections
served pursuant to CPLR 3122(a) (the “Response”), either:
(1) state that the production is made as requested; or
(2) state with reasonable particularity the grounds for any objection to production.
(b) Each Response shall state: (i) whether the objection(s) interposed pertains to all or part of the request
being challenged; (ii) whether any documents or categories of documents are being withheld, and if so.
which of the stated objection(s) forms the basis for the responding party’s decision to withhold otherwise
responsive documents or categories of documents; and (iii) the manner in which the responding party
intends to limit the scope of its production.
(c) In each Response, the responding party shall verify, for each individual requests: (i) whether the
production of documents in its possession, custody or control and that are responsive to the individual
request, as propounded or modified, is complete: or (ii) that there are no documents in its possession,
custody or control that are responsive to the individual request as propounded or modified.
(d) Nothing contained herein is intended to conflict with a party’s obligation to supplement its disclosure
obligations pursuant to CPLR 3101(h).
(e) The parties are encouraged to use the most efficient means to review documents. including
electronically stored information (“ESI”) that is consistent with the parties’ disclosure obligations under
Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-
assisted review, including predictive coding. in appropriate cases. The parties are encouraged to confer, at
the outset of discovery and as needed throughout the discovery period, about technology-assisted review
mechanisms they intend to use in document review and production
(f) Absent good cause, a party may not use at trial or otherwise any document which was not produced in
response to a request for such document or category of document, which request was not objected to or if
objected to such objection was overruled by the court.
History
Added, eff February 1, 2021; amended eff July 1, 2022.
New York Court Rules Annotated
Copyright © 2022 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group All rights reserved.
Matthew Ciulla
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NY CLS Unif Rules, Civil Cts § 202.20-c
End of Document
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NY CLS Unif Rules, Civil Cts § 202.70
This document reflects all changes received as of August 31, 2022
NY - New York Court Rules > Uniform Rules for the New York State Trial Courts > Part 202.
Uniform Civil Rules for the Supreme Court and the County Court
§ 202.70. Rules of the Commercial Division of the Supreme Court
(a) Monetary thresholds
Except as set forth in subdivision (b), the monetary thresholds of the Commercial Division, exclusive of
punitive damages, interests, costs, disbursements and counsel fees claimed, are established as
follows:
Albany County $50,000
Bronx County $75,000
Eighth Judicial District $100,000
Kings County $150,000
Nassau County $200,000
New York County $500,000
Onondaga County $50,000
Queens County $100,000
Seventh Judicial District $25,000
Suffolk County $100,000
Westchester County $100,000
(b) Commercial cases
Actions in which the principal claims involve or consist of the following will be heard in the Commercial
Division provided that the monetary threshold is met or equitable or declaratory relief is sought:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair
competition), or statutory and/or common law violation where the breach or violation is alleged to
arise out of business dealings (e.g., sales of assets or securities; corporate restructuring;
partnership, shareholder, joint venture, and other business agreements; trade secrets; restrictive
covenants; and employment agreements not including claims that principally involve alleged
discriminatory practices);
(2) Transactions governed by the Uniform Commercial Code (exclusive of those concerning
individual cooperative or condominium units);
(3) Transactions involving commercial real property, including Yellowstone injunctions and
excluding actions for the payment of rent only;
(4) Shareholder derivative actions — without consideration of the monetary threshold;
(5) Commercial class actions — without consideration of the monetary threshold;
(6) Business transactions involving or arising out of dealings with commercial banks and other
financial institutions;
(7) Internal affairs of business organizations;
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NY CLS Unif Rules, Civil Cts § 202.70
(8) Malpractice by accountants or actuaries, and legal malpractice arising out of representation in
commercial matters;
(9) Environmental insurance coverage;
(10) Commercial insurance coverage (e.g. directors and officers, errors and omissions, and
business interruption coverage);
(11) Dissolution of corporations, partnerships, limited liability companies, limited liability
partnerships and joint ventures — without consideration of the monetary threshold; and
(12) Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related
injunctive relief pursuant to CPLR Article 75 involving any of the foregoing enumerated commercial
issues. Where the applicable arbitration agreement provides for the arbitration to be heard outside
the United States, the monetary threshold set forth in section 202. 70(a) shall not apply.
(c) Non-commercial cases
The following will not be heard in the Commercial Division even if the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for personal injury or property
damage;
(3) Residential real estate disputes, including landlord-tenant matters, and commercial real estate
disputes involving the payment of rent only;
(4) Home improvement contracts involving residential properties consisting of one to four
residential units or individual units in any residential building, including cooperative or condominium
units;
(5) Proceedings to enforce a judgment regardless of the nature of the underlying case;
(6) First-party insurance claims and actions by insurers to collect premiums or rescind non-
commercial policies; and
(7) Attorney malpractice actions except as otherwise provided in paragraph (b)(8).
(d) Assignment to the Commercial Division
(1) Within 90 days following service of the complaint, any party may seek assignment of a case to the
Commercial Division by filing a Request for Judicial Intervention (RJI) that attaches a completed
Commercial Division RJI Addendum certifying that the case meets the jurisdictional requirements for
Commercial Division assignment set forth in subdivisions (a), (b) and (c) of this section. Except as
provided in subdivision (e) below, failure to file an RJI pursuant to this subdivision precludes a party
from seeking assignment of the case to the Commercial Division.
(2) Subject to meeting the jurisdictional requirements of subdivisions (a), (b) and (c) of this section and
filing an RJI in compliance with subsection (d)(l) above, the parties to a contract may consent to the
exclusive jurisdiction of the Commercial Division of the Supreme Court by including such consent in
their contract. A sample choice of forum provision can be found at Appendix C to these Rules of the
Commercial Division. Alternatively, subject to meeting the jurisdictional and procedural requirements
applicable to the Commercial Division and the federal courts, the parties to a contract may consent to
the exclusive jurisdiction of either the Commercial Division of the Supreme Court or the federal courts in
New York State by including such consent in their contract. An alternative sample choice of forum
provision to that effect can also be found at Appendix C to these Rules of the Commercial Division. In
addition, the parties to a contract may consent to having New York law apply to their contract, or any
dispute under the contract. A sample choice of law provision can be found at Appendix D to these
Rules of the Commercial Division.
(e) Transfer into the Commercial Division
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NY CLS Unif Rules, Civil Cts § 202.70
If a an RJI is filed within the 90-day period following service of the complaint and the case is assigned
to a non-commercial part because the filing party did not designate the case as “commercial” on the
RJI, any other party may apply by letter application (with a copy to all parties) to the Administrative
Judge, within ten days after receipt of a copy of the RJI, for a transfer of the case into the Commercial
Division. Further, notwithstanding the time periods set forth in subdivision (d) and (e) of this section, for
good cause shown for the delay a party may seek transfer of a case to the Commercial Division by
letter application (with a copy to all parties) to the Administrative Judge. In addition, a non-Commercial
Division justice to whom a case is assigned may sua sponte request the Administrative Judge to
transfer a case that meets the jurisdictional requirements for Commercial Division assignment set forth
in subdivisions (a), (b) and (c) of this section to the Commercial Division. The determination of the
Administrative Judge with respect to any letter applications or requests under this subdivision shall be
final and subject to no further administrative review or appeal.
(f) Transfer from the Commercial Division
(1) In the discretion of the Commercial Division justice assigned, if a case does not fall within the
jurisdiction of the Commercial Division as set forth in this section, it shall be transferred to a non-
commercial part of the court.
(2) Any party aggrieved by a transfer of a case to a non-commercial part may seek review by letter
application (with a copy to all parties) to the Administrative Judge within ten days of receipt of the
designation of the case to a non-commercial part. The determination of the Administrative Judge shall
be final and subject to no further administrative review or appeal.
(g) Rules of practice for the Commercial Division.
Unless these rules of practice for the Commercial Division provide specifically to the contrary, the rules
of Part 202 also shall apply to the Commercial Division, except that Rules 7 through 15 shall supersede
section 202.12 (Preliminary Conference) and Rules 16 through 24 shall supersede section 202.8
(Motion Procedure).
Preamble. Created in 1995, today’s Commercial Division of the New York State Supreme Court is an
efficient, sophisticated, up-to-date court dealing with challenging commercial cases. From its inception, the
Commercial Division has had as its primary goal the cost-effective, predictable and fair adjudication of
complex commercial cases. By virtue of its specialized subject matter jurisdiction, exceptional judicial
expertise, rules and procedures dedicated to commercial practice, and commitment to high standards of
attorney professionalism, the Division has established itself at the forefront of worldwide commercial
litigation in the twenty-first century.
(1) Jurisdiction and Judiciary. The subject matter jurisdiction of the Commercial Division – including
both substantial monetary thresholds and carefully chosen case types (see § 202.70[a] and [b]) – is
designed to ensure that it is the forum of resolution of the most complex and consequential commercial
matters commenced in New York’s courts. Accordingly, the Division’s judges are chosen for their extensive
experience in resolving sophisticated commercial disputes. Unlike jurists in other civil parts in New York’s
court system, Commercial Division justices devote themselves almost exclusively to these complex
commercial matters.
(2) Rules and Procedures. Since its inception, the Commercial Division has implemented rules,
procedures and forms especially designed to address the unique problems of commercial practice. Such
rules have addressed a wide range of matters such as proportionality in discovery, optional accelerated
adjudication, robust expert disclosure, limits on depositions and interrogatories, streamlined privilege logs,
special rules concerning entity depositions, model forms to facilitate discovery, expedited resolution of
discovery disputes, simplification of bench trials, time limits on all trials, streamlined presentation of
evidence at trials, and a strong commitment to early case disposition through the Division’s alternative
dispute resolution program. Equally important, through the work of the Commercial Division Advisory
Council – a committee of commercial practitioners, corporate in-house counsel and jurists devoted to the
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NY CLS Unif Rules, Civil Cts § 202.70
Division’s excellence – the Commercial Division has become a recognized leader in court system
innovation, demonstrating an unparalleled creativity and flexibility in development of rules and practices.
(3) The Commercial Division Bar. Finally, the work of the Commercial Division has prospered through
the strong cooperative spirit of the bar practicing before it. The subject matter jurisdiction of the court, the
pace of high-stakes commercial practice, the sophistication of the judiciary and the specialized rules of the
Division require that the practicing bar be held rigorously to a standard of commitment and professionalism
of the highest caliber. For example, the failure to appear (or the appearance without proper preparation) at
scheduled court dates, depositions or hearings is generally viewed as highly improper in the Commercial
Division, and can readily result in the imposition of sanctions and penalties as permitted under statute and
court rule (see, e.g., CPLR 3126; see also 22 NYCRR Part 130). At the same time, the Commercial
Division’s judiciary is strongly committed to the ongoing development of New York’s commercial bar and, in
that spirit, has instituted practices encouraging the participation of less experienced members of that bar in
substantive and meaningful ways (including presentation of motions or examination of witnesses) in matters
before it. In this manner, the Division seeks to ensure the continued development of the highest quality of
commercial bar in New York State.
(4) Conclusion. “New York is the center of world commerce, the headquarters of international finance,
the home of America’s leading businesses. As such, it strongly needs a modern, well-staffed, properly
equipped forum for the swift, fair and expert resolution of significant commercial disputes.” In 1995, those
words introduced the New York State Bar Association’s report proposing the creation of the Commercial
Division (N.Y. St. Bar Ass’n, A Commercial Court For New York [Jan. 1995]). Since then, they have served
as the central rationale for the Division’s commitment to excellence in the administration of the rule of law in
business in New York. The practice rules of the Commercial Division, set forth below, are a crucial
component of that commitment, and are designed to be a dynamic counterpart to the innovative and
efficient business practices which are so essential to the economic health of our State and nation.
Rule 1. Appearance by Counsel with Knowledge and Authority.
(a) Counsel who appear in the Commercial Division must be fully familiar with the case in regard to
which they appear and fully authorized to enter into agreements, both substantive and procedural, on
behalf of their clients. Counsel should also be prepared to discuss any motions that have been
submitted and are outstanding. Failure to comply with this rule may be regarded as a default and dealt
with appropriately. See Rule 12.
(b) Consistent with the requirements of Rule 11-c, counsel for all parties who appear at the preliminary
conference shall be sufficiently versed in matters relating to their clients’ technological systems to
discuss competently all issues relating to electronic discovery. Counsel may bring a client
representative or outside expert to assist in such discussions.
(c) It is important that counsel be on time for all scheduled appearances.
(d) Counsel may request the court’s permission to participate in court conferences and oral arguments
from remote locations through use of videoconferencing or other technologies. Such requests will be
granted in the court’s discretion for good cause shown; however. nothing contained in this subsection
(d) is intended to limit any rights which counsel may otherwise have to participate in court proceedings
by appearing in person.
Rule 2. Settlements and Discontinuances. If an action is settled, discontinued, or otherwise disposed of,
counsel shall immediately inform the court by submission of a copy of the stipulation or a letter directed to
the clerk of the part along with notice to chambers via telephone or e-mail. This notification shall be made in
addition to the filing of a stipulation with the County Clerk.
Rule 3. Alternative Dispute Resolution (ADR); Settlement Conference Before a Justice Other Than
the Justice Assigned to the Case.
(a) At any stage of the matter, the court may direct or counsel may seek the appointment of an
uncompensated mediator or neutral evaluator for the purpose of helping to achieve a resolution of all or
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NY CLS Unif Rules, Civil Cts § 202.70
some of the issues presented in the litigation. Counsel are encouraged to work together to select a
mediator or neutral evaluator that is mutually acceptable and may wish to consult any list of approved
neutrals in the county where the case is pending. Additionally, counsel for all parties may stipulate to
having the case determined by a summary jury trial pursuant to any applicable local rules or, in the
absence of a controlling local rule, with permission of the court.
(b) Should counsel wish to proceed with a settlement conference before a justice other than the justice
assigned to t
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FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 EXHIBIT 3 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 BEFORE THE DISCOVERY REFEREE WILLIAM P. HARRINGTON WESTCHESTER COUNTY, NEW YORK SUPREME COURT PAMELA GOLDSTEIN, ) ELLYN & TONY BERK, AS ADMINISTRATORS ) OF THE ESTATE OF WINNIFRED BERK, AND ) CASE NO. 60767/2018 PAUL BENJAMIN, ON BEHALF OF THEMSELVES ) AND ALL OTHERS SIMILARLY SITUATED, ) ) DISCOVERY REFEREE MOTION: PLAINTIFFS, ) NO. 19-002 ) V. ) ORAL ARGUMENT REQUESTED ) HOULIHAN/LAWRENCE, INC., ) ) DEFENDANT. ) HOULIHAN LAWRENCE’S MOTION TO PERMIT TECHNOLOGY ASSISTED REVIEW (No. 19-002) The Discovery Referee has worked to establish a protocol by which Plaintiffs propose six search terms, Houlihan Lawrence reviews the search terms (as applied to particular custodians) for overbreadth or undue burden, and Houlihan Lawrence raises appropriate burden or other concerns with the Referee for prompt adjudication. This protocol has been followed in the prior years and has yielded eighteen reports and recommendations, each designed to put discovery behind us and to move this case forward under the Referee’s capable eye. Unfortunately, Plaintiffs’ search term list continues to balloon. Instead of the six search terms originally envisioned by the Referee in 2018, Plaintiffs’ list now contains 166 search terms. Houlihan Lawrence is committed to working within the parameters established by the Referee, which have served the parties well for the past several years in this matter. That is why Houlihan Lawrence has not moved to modify or quash 132 of the 166 search terms. Houlihan Lawrence requests commonsense modifications to the other 34, as described in contemporaneous Motion 19-003. FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 But the 166 search terms are poorly written, whether modified or not. All parties, the Referee, and the Court have stated their sincere desire to move this case forward in an expeditious manner. One way to streamline the review of the results of the lackluster 166 search terms is to apply technology assisted review to “sort” or “rank” the “hit” documents. The computer “learns” from the human inputs and predicts the responsiveness of each “hit” document. By continuously “re-ranking” the documents, we can ensure that human review is used in the most efficient way possible: by reviewing the most potentially responsive/relevant documents, and by not wasting time on those documents that are very likely unresponsive/irrelevant. Technology assisted review is expressly embraced by the Court, and the parties are permitted to consider it at any time “throughout the discovery period.”1 Here, Plaintiffs have utilized 166 search terms and ten custodians. Houlihan Lawrence seeks to employ Technology Assisted Review to “rank” the resulting documents in order from most relevant to least relevant, ensuring that HL’s manual, linear review is focused on the most relevant documents. Plaintiffs attempt to reject this protocol. But the rules direct that parties “employ search terms and other search methodologies (e.g., TAR) reasonably designed to identify evidence that is material to the dispute.”2 Plaintiffs’ claim that TAR and search terms are mutually-exclusive “alternatives” is thus contraindicated by the rules. Plaintiffs must show that Houlihan Lawrence’s TAR Protocol is “manifestly unreasonable.” Because Plaintiffs have made no attempt to show that the TAR Protocol is “manifestly unreasonable,” the Referee should quash Plaintiffs’ objection and permit the TAR 1 § 202.70 Rule 11-c(f), attached as Exhibit B, at page 10. 2 § 202.70, Appendix A subsection V(D–E), attached as Exhibit B, at page 24. 2 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 Protocol to proceed. This will allow the parties to continue to apply the Referee’s ESI procedures as in past years and for the document review to commence in an efficient manner. NEW YORK AUTHORITIES The courts of this State “encourage[]” all parties “to use the most efficient means to review documents,” expressly “includ[ing] technology-assisted review, including predictive coding.” § 202.20-c(e), attached as Exhibit A, at page 1. The Commercial Division is even more explicit in its endorsement of TAR, ordering that the parties “shall confer” “as needed throughout the discovery period[] about technology-assisted review mechanisms they propose to use in document review and production.” § 202.70 Rule 11-c(f), attached as Exhibit B, at page 10 (emphasis added). Elaborating, the Commercial Division has pronounced: D. The parties should exchange reasonable information about a party’s process for searching and reviewing ESI, including search terms to be used, filtering out of certain file types, date filters, deduplication, email thread suppression, and the use of technology assisted review (TAR) to aid in the review process. E. Consistent with Rule 11-c(f), the parties are encouraged to use efficient means to identify ESI for production. The parties should tailor searches of ESI to (a) apply to custodians whose ESI may reasonably be expected to contain evidence that is material to the dispute and (b) employ search terms and other search methodologies (e.g., TAR) reasonably designed to identify evidence that is material to the dispute. So that use of TAR is not unjustifiably discouraged, its use should not be held to a higher standard than the use of search term keywords or manual review. § 202.70, Appendix A subsection V(D–E), attached as Exhibit B, at page 24 (emphasis added). The reason for these rules is clear: “the responding party knows best what kinds and volume of documents it has, how they are stored, and what it will cost to review them,” and thus “responding parties are best situated to evaluate the procedures, methodologies, and technologies 3 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 appropriate for preserving and producing their own electronically stored information.” NY Orders 2018-6 at 5, attached as Exhibit C, at page 5. (citation omitted, alteration adopted). THE CHALLENGE PROCEDURE AND BURDEN OF PROOF The Subcommittee on Procedural Rules to Promote Efficient Case Resolution has stated that a responding party “is best placed to analyze in the first instance what it believes to be the most efficient means to review its own documents.” NY Orders 2018-6 at 5, attached as Exhibit C, at page 5. (citation omitted, alteration adopted). The Subcommittee notes that a requesting party may “challeng[e] those means as inadequate or a production as incomplete,” which challenge should show that “the responding party's choice is manifestly unreasonable or…the resulting production is deficient.” Id. (emphasis added). Thus, the Subcommittee envisions the following procedure for challenging a party’s TAR Protocol: (1) The responding party (HL) analyzes in the first instance what it believes to be the most efficient means to review its own documents. (2) The requesting party (Plaintiff) initiates a challenge to those means as inadequate or a production as incomplete. (3) The requesting party (Plaintiff) must demonstrate that the responding party’s (HL’s) choice is manifestly unreasonable or that the resulting production is deficient. Because the production here has not yet taken place, the procedure and burden can be narrowed even further for present purposes: Plaintiffs must show that Houlihan Lawrence’s TAR Protocol is manifestly unreasonable. PLAINTIFFS HAVE FAILED TO MEET THEIR BURDEN TO SHOW THAT HOULIHAN LAWRENCE’S TAR PROTOCOL IS “MANIFESTLY UNREASONABLE.” Plaintiffs make no attempt to show that Houlihan Lawrence’s TAR Protocol is “manifestly unreasonable.” Houlihan Lawrences addresses each of Plaintiffs’ complaints in order in the table below. Houlihan Lawrence does not respond to Plaintiffs’ personal attacks or 4 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 aspersions, as the Discovery Referee has instructed repeatedly that such outbursts are not productive and will not be considered. Plaintiffs’ Complaint Response TAR and search terms • The Rules expressly endorse the use of “search are mutually exclusive terms and other search methodologies (e.g., alternatives (Vest 9/16 TAR) reasonably designed to identify evidence at 6-7) that is material to the dispute.” § 202.70, Appendix A subsection V(D–E), attached as Exhibit B, at page 24 (emphasis added). • Courts approve methodologies using both TAR and search terms. See, e.g.: o In re Arby’s Rest. Grp., No. 1:17-mi- 55555, 2018 U.S. Dist. LEXIS 233650, at *15 n.2 (N.D. Ga. Aug. 16, 2018) (“These all-ESI searches involve using search terms, date range, and Technology Assisted Review.”). o In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., No. 3:12- md-2391, 2013 U.S. Dist. LEXIS 172570, at *1-2 (N.D. Ind. Aug. 21, 2013) (where party first used “keyword culling” and “de-duplication” and then “turned to technology-assisted review, or ‘predictive coding,’” party did not need to “go back to square one in its document production and use predictive coding”). o Channel Medsystems v. Boston Sci. Corp, No. 2018-0673-AGB, 2019 Del. Ch. LEXIS 391, at *7 (Del. Ch. Jan. 7, 2019)3 (party “shall employ human review and search terms” and “will also use technology assisted review as is reasonably necessary”). o In re MacBook Keyboard Litig., No. 18-cv-02813, 2019 U.S. Dist. LEXIS 106154, at *3-4 (N.D. Cal. June 21, 3 Signed order attached as Exhibit D. 5 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 Plaintiffs’ Complaint Response 2019) (Apple utilized search terms and technology assisted review). TAR must have been • The Rules expressly permit a responding party to disclose disclosed at some TAR “as needed throughout the discovery period[] about earlier time (Vest 9/16 technology-assisted review mechanisms they propose to use at 7-8) in document review and production.” § 202.70 Rule 11-c(f), attached as Exhibit B, at page 10 (emphasis added). Plaintiffs get to direct • The responding party, Houlihan Lawrence, “knows best what the content of the kinds and volume of documents it has, how they are stored, TAR Protocol (Vest and what it will cost to review them.” NY Orders 2018-6 at 5, 9/16 at 8) attached as Exhibit C, at page 5. Therefore, Houlihan Lawrence is “best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing [its] own electronically stored information.” Id. • Although conferring and agreeing is “encouraged,” it is not required. Id. If an agreement cannot be reached, Plaintiffs bear the burden of showing that Houlihan Lawrence’s TAR Protocol is “manifestly unreasonable.” Id. They have not done so. Houlihan Lawrence’s • Plaintiffs provide no support for this conclusion. TAR Protocol is “fatally defective” (Vest 9/16 at 8) CONCLUSION Because Plaintiffs have made no showing that Houlihan Lawrence’s TAR Protocol is “manifestly unreasonable,” the TAR Protocol should be permitted to streamline these proceedings. Dated: September 23, 2022 6 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 /s/Robert D. MacGill Robert D. MacGill (pro hac vice) Matthew T. Ciulla (pro hac vice) MACGILL PC 156 E Market St Suite 1200 Indianapolis, IN 46204 Phone: (317) 721-1253 Alfred E. Donnellan, Esq. Nelida Lara, Esq. One North Lexington Avenue, 11th Floor White Plains, New York 10601 Phone: (914) 681-0200 Attorneys for Defendant 7 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.20-c This document reflects all changes received as of August 31, 2022 NY - New York Court Rules > Uniform Rules for the New York State Trial Courts > Part 202. Uniform Civil Rules for the Supreme Court and the County Court § 202.20-c. Requests for Documents [Effective until July 1, 2022] (a) For each document request propounded, the responding party shall, in its Response and Objections served pursuant to CPLR 3122(a) (the “Response”), either: (1) state that the production is made as requested; or (2) state with reasonable particularity the grounds for any objection to production. (b) Each Response shall state: (i) whether the objection(s) interposed pertains to all or part of the request being challenged; (ii) whether any documents or categories of documents are being withheld, and if so. which of the stated objection(s) forms the basis for the responding party’s decision to withhold otherwise responsive documents or categories of documents; and (iii) the manner in which the responding party intends to limit the scope of its production. (c) In each Response, the responding party shall verify, for each individual requests: (i) whether the production of documents in its possession, custody or control and that are responsive to the individual request, as propounded or modified, is complete: or (ii) that there are no documents in its possession, custody or control that are responsive to the individual request as propounded or modified. (d) Nothing contained herein is intended to conflict with a party’s obligation to supplement its disclosure obligations pursuant to CPLR 3101(h). (e) The parties are encouraged to use the most efficient means to review documents. including electronically stored information (“ESI”) that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology- assisted review, including predictive coding. in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production (f) Absent good cause, a party may not use at trial or otherwise any document which was not produced in response to a request for such document or category of document, which request was not objected to or if objected to such objection was overruled by the court. History Added, eff February 1, 2021; amended eff July 1, 2022. New York Court Rules Annotated Copyright © 2022 Matthew Bender & Company, Inc., a member of the LexisNexis Group All rights reserved. Matthew Ciulla FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.20-c End of Document Matthew Ciulla Page 2 of 2 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.70 This document reflects all changes received as of August 31, 2022 NY - New York Court Rules > Uniform Rules for the New York State Trial Courts > Part 202. Uniform Civil Rules for the Supreme Court and the County Court § 202.70. Rules of the Commercial Division of the Supreme Court (a) Monetary thresholds Except as set forth in subdivision (b), the monetary thresholds of the Commercial Division, exclusive of punitive damages, interests, costs, disbursements and counsel fees claimed, are established as follows: Albany County $50,000 Bronx County $75,000 Eighth Judicial District $100,000 Kings County $150,000 Nassau County $200,000 New York County $500,000 Onondaga County $50,000 Queens County $100,000 Seventh Judicial District $25,000 Suffolk County $100,000 Westchester County $100,000 (b) Commercial cases Actions in which the principal claims involve or consist of the following will be heard in the Commercial Division provided that the monetary threshold is met or equitable or declaratory relief is sought: (1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair competition), or statutory and/or common law violation where the breach or violation is alleged to arise out of business dealings (e.g., sales of assets or securities; corporate restructuring; partnership, shareholder, joint venture, and other business agreements; trade secrets; restrictive covenants; and employment agreements not including claims that principally involve alleged discriminatory practices); (2) Transactions governed by the Uniform Commercial Code (exclusive of those concerning individual cooperative or condominium units); (3) Transactions involving commercial real property, including Yellowstone injunctions and excluding actions for the payment of rent only; (4) Shareholder derivative actions — without consideration of the monetary threshold; (5) Commercial class actions — without consideration of the monetary threshold; (6) Business transactions involving or arising out of dealings with commercial banks and other financial institutions; (7) Internal affairs of business organizations; Matthew Ciulla FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.70 (8) Malpractice by accountants or actuaries, and legal malpractice arising out of representation in commercial matters; (9) Environmental insurance coverage; (10) Commercial insurance coverage (e.g. directors and officers, errors and omissions, and business interruption coverage); (11) Dissolution of corporations, partnerships, limited liability companies, limited liability partnerships and joint ventures — without consideration of the monetary threshold; and (12) Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related injunctive relief pursuant to CPLR Article 75 involving any of the foregoing enumerated commercial issues. Where the applicable arbitration agreement provides for the arbitration to be heard outside the United States, the monetary threshold set forth in section 202. 70(a) shall not apply. (c) Non-commercial cases The following will not be heard in the Commercial Division even if the monetary threshold is met: (1) Suits to collect professional fees; (2) Cases seeking a declaratory judgment as to insurance coverage for personal injury or property damage; (3) Residential real estate disputes, including landlord-tenant matters, and commercial real estate disputes involving the payment of rent only; (4) Home improvement contracts involving residential properties consisting of one to four residential units or individual units in any residential building, including cooperative or condominium units; (5) Proceedings to enforce a judgment regardless of the nature of the underlying case; (6) First-party insurance claims and actions by insurers to collect premiums or rescind non- commercial policies; and (7) Attorney malpractice actions except as otherwise provided in paragraph (b)(8). (d) Assignment to the Commercial Division (1) Within 90 days following service of the complaint, any party may seek assignment of a case to the Commercial Division by filing a Request for Judicial Intervention (RJI) that attaches a completed Commercial Division RJI Addendum certifying that the case meets the jurisdictional requirements for Commercial Division assignment set forth in subdivisions (a), (b) and (c) of this section. Except as provided in subdivision (e) below, failure to file an RJI pursuant to this subdivision precludes a party from seeking assignment of the case to the Commercial Division. (2) Subject to meeting the jurisdictional requirements of subdivisions (a), (b) and (c) of this section and filing an RJI in compliance with subsection (d)(l) above, the parties to a contract may consent to the exclusive jurisdiction of the Commercial Division of the Supreme Court by including such consent in their contract. A sample choice of forum provision can be found at Appendix C to these Rules of the Commercial Division. Alternatively, subject to meeting the jurisdictional and procedural requirements applicable to the Commercial Division and the federal courts, the parties to a contract may consent to the exclusive jurisdiction of either the Commercial Division of the Supreme Court or the federal courts in New York State by including such consent in their contract. An alternative sample choice of forum provision to that effect can also be found at Appendix C to these Rules of the Commercial Division. In addition, the parties to a contract may consent to having New York law apply to their contract, or any dispute under the contract. A sample choice of law provision can be found at Appendix D to these Rules of the Commercial Division. (e) Transfer into the Commercial Division Matthew Ciulla Page 2 of 36 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.70 If a an RJI is filed within the 90-day period following service of the complaint and the case is assigned to a non-commercial part because the filing party did not designate the case as “commercial” on the RJI, any other party may apply by letter application (with a copy to all parties) to the Administrative Judge, within ten days after receipt of a copy of the RJI, for a transfer of the case into the Commercial Division. Further, notwithstanding the time periods set forth in subdivision (d) and (e) of this section, for good cause shown for the delay a party may seek transfer of a case to the Commercial Division by letter application (with a copy to all parties) to the Administrative Judge. In addition, a non-Commercial Division justice to whom a case is assigned may sua sponte request the Administrative Judge to transfer a case that meets the jurisdictional requirements for Commercial Division assignment set forth in subdivisions (a), (b) and (c) of this section to the Commercial Division. The determination of the Administrative Judge with respect to any letter applications or requests under this subdivision shall be final and subject to no further administrative review or appeal. (f) Transfer from the Commercial Division (1) In the discretion of the Commercial Division justice assigned, if a case does not fall within the jurisdiction of the Commercial Division as set forth in this section, it shall be transferred to a non- commercial part of the court. (2) Any party aggrieved by a transfer of a case to a non-commercial part may seek review by letter application (with a copy to all parties) to the Administrative Judge within ten days of receipt of the designation of the case to a non-commercial part. The determination of the Administrative Judge shall be final and subject to no further administrative review or appeal. (g) Rules of practice for the Commercial Division. Unless these rules of practice for the Commercial Division provide specifically to the contrary, the rules of Part 202 also shall apply to the Commercial Division, except that Rules 7 through 15 shall supersede section 202.12 (Preliminary Conference) and Rules 16 through 24 shall supersede section 202.8 (Motion Procedure). Preamble. Created in 1995, today’s Commercial Division of the New York State Supreme Court is an efficient, sophisticated, up-to-date court dealing with challenging commercial cases. From its inception, the Commercial Division has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases. By virtue of its specialized subject matter jurisdiction, exceptional judicial expertise, rules and procedures dedicated to commercial practice, and commitment to high standards of attorney professionalism, the Division has established itself at the forefront of worldwide commercial litigation in the twenty-first century. (1) Jurisdiction and Judiciary. The subject matter jurisdiction of the Commercial Division – including both substantial monetary thresholds and carefully chosen case types (see § 202.70[a] and [b]) – is designed to ensure that it is the forum of resolution of the most complex and consequential commercial matters commenced in New York’s courts. Accordingly, the Division’s judges are chosen for their extensive experience in resolving sophisticated commercial disputes. Unlike jurists in other civil parts in New York’s court system, Commercial Division justices devote themselves almost exclusively to these complex commercial matters. (2) Rules and Procedures. Since its inception, the Commercial Division has implemented rules, procedures and forms especially designed to address the unique problems of commercial practice. Such rules have addressed a wide range of matters such as proportionality in discovery, optional accelerated adjudication, robust expert disclosure, limits on depositions and interrogatories, streamlined privilege logs, special rules concerning entity depositions, model forms to facilitate discovery, expedited resolution of discovery disputes, simplification of bench trials, time limits on all trials, streamlined presentation of evidence at trials, and a strong commitment to early case disposition through the Division’s alternative dispute resolution program. Equally important, through the work of the Commercial Division Advisory Council – a committee of commercial practitioners, corporate in-house counsel and jurists devoted to the Matthew Ciulla Page 3 of 36 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.70 Division’s excellence – the Commercial Division has become a recognized leader in court system innovation, demonstrating an unparalleled creativity and flexibility in development of rules and practices. (3) The Commercial Division Bar. Finally, the work of the Commercial Division has prospered through the strong cooperative spirit of the bar practicing before it. The subject matter jurisdiction of the court, the pace of high-stakes commercial practice, the sophistication of the judiciary and the specialized rules of the Division require that the practicing bar be held rigorously to a standard of commitment and professionalism of the highest caliber. For example, the failure to appear (or the appearance without proper preparation) at scheduled court dates, depositions or hearings is generally viewed as highly improper in the Commercial Division, and can readily result in the imposition of sanctions and penalties as permitted under statute and court rule (see, e.g., CPLR 3126; see also 22 NYCRR Part 130). At the same time, the Commercial Division’s judiciary is strongly committed to the ongoing development of New York’s commercial bar and, in that spirit, has instituted practices encouraging the participation of less experienced members of that bar in substantive and meaningful ways (including presentation of motions or examination of witnesses) in matters before it. In this manner, the Division seeks to ensure the continued development of the highest quality of commercial bar in New York State. (4) Conclusion. “New York is the center of world commerce, the headquarters of international finance, the home of America’s leading businesses. As such, it strongly needs a modern, well-staffed, properly equipped forum for the swift, fair and expert resolution of significant commercial disputes.” In 1995, those words introduced the New York State Bar Association’s report proposing the creation of the Commercial Division (N.Y. St. Bar Ass’n, A Commercial Court For New York [Jan. 1995]). Since then, they have served as the central rationale for the Division’s commitment to excellence in the administration of the rule of law in business in New York. The practice rules of the Commercial Division, set forth below, are a crucial component of that commitment, and are designed to be a dynamic counterpart to the innovative and efficient business practices which are so essential to the economic health of our State and nation. Rule 1. Appearance by Counsel with Knowledge and Authority. (a) Counsel who appear in the Commercial Division must be fully familiar with the case in regard to which they appear and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients. Counsel should also be prepared to discuss any motions that have been submitted and are outstanding. Failure to comply with this rule may be regarded as a default and dealt with appropriately. See Rule 12. (b) Consistent with the requirements of Rule 11-c, counsel for all parties who appear at the preliminary conference shall be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery. Counsel may bring a client representative or outside expert to assist in such discussions. (c) It is important that counsel be on time for all scheduled appearances. (d) Counsel may request the court’s permission to participate in court conferences and oral arguments from remote locations through use of videoconferencing or other technologies. Such requests will be granted in the court’s discretion for good cause shown; however. nothing contained in this subsection (d) is intended to limit any rights which counsel may otherwise have to participate in court proceedings by appearing in person. Rule 2. Settlements and Discontinuances. If an action is settled, discontinued, or otherwise disposed of, counsel shall immediately inform the court by submission of a copy of the stipulation or a letter directed to the clerk of the part along with notice to chambers via telephone or e-mail. This notification shall be made in addition to the filing of a stipulation with the County Clerk. Rule 3. Alternative Dispute Resolution (ADR); Settlement Conference Before a Justice Other Than the Justice Assigned to the Case. (a) At any stage of the matter, the court may direct or counsel may seek the appointment of an uncompensated mediator or neutral evaluator for the purpose of helping to achieve a resolution of all or Matthew Ciulla Page 4 of 36 FILED: WESTCHESTER COUNTY CLERK 11/23/2022 03:15 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1479 RECEIVED NYSCEF: 11/23/2022 NY CLS Unif Rules, Civil Cts § 202.70 some of the issues presented in the litigation. Counsel are encouraged to work together to select a mediator or neutral evaluator that is mutually acceptable and may wish to consult any list of approved neutrals in the county where the case is pending. Additionally, counsel for all parties may stipulate to having the case determined by a summary jury trial pursuant to any applicable local rules or, in the absence of a controlling local rule, with permission of the court. (b) Should counsel wish to proceed with a settlement conference before a justice other than the justice assigned to t