The 2019 New York Commercial Division Practice Guide (the Guide), edited by Stephen P. Younger and Muhammad U. Faridi of Patterson Belknap Webb & Tyler, is the tool kit that all New York commercial litigators need. The Guide is updated for 2019 and is part of the Litigation Practice Portfolio Series from Bloomberg Law and is available through Bloomberg Law's Portfolio Series. One of the new additions is a section on the newly created Commercial Division in Bronx County. The Guide, footnoted to authorities through 2019, also contains forewords by former Chief Judge Jonathan Lippman, former Appellate Division and Commercial Division Justice Steven C. Crane and former Commercial Division Justice Eileen Bransten. It is an essential guide, for both the less experienced litigator who does not often appear in the Commercial Division as well as the more experienced litigator, as it provides nuanced "practice tips" for appearing in that court. Significantly, the Guide's chapters provide "examples," "practice tips" and "comments" to the text, which, along with its model forms, are really the Guide's true strength.

The Guide contains the updated rules of the Commercial Division and provides detailed commentary on each rule. For instance, the Guide discusses new Rule 9-a, which provides litigants an opportunity to accelerate the resolution of Commercial Division cases by encouraging them to move for immediate trial or for a pre-trial evidentiary hearing on, for instance, spoliation of evidence, statutes of limitation, jurisdictional issues, and class certification. The Guide also addresses new Rule 11-e, which encourages parties to use appropriate technology-assisted document review mechanisms. Crucial footnotes include references to the Commercial Division Advisory Council's memoranda, which provides the rationale behind many of the Commercial Division's rules. The Guide also provides a case roadmap, noting the critical deadlines that need to be followed in order to seek to have a case assigned to the Commercial Division.

Critically, the Guide highlights the Administrative Order, which establishes a new pilot project for the "automatic referral of certain commercial cases to mandatory mediation" and that, under this order, cases "that are not assigned to the Commercial Division are sent to early mediation. In addition, importantly, New York practitioners are alerted that "Justices outside the Commercial Division to whom commercial cases are assigned at random … to refer such cases to mandatory mediation in the [pilot program] in accordance with those Rules and Procedures."

A convenient chart is also included highlighting each Judicial District and Commercial Division Justice's varying approaches and local practice rules. The Guide reminds attorneys of a critical distinction between non-commercial and commercial practice: There is no automatic stay of discovery upon the filing of dispositive motions. Also emphasized is the streamlined discovery process required in the Commercial Division, including limitations on interrogatories, notices to admit and depositions. The Guide's discussion of expert discovery protocols is critical, as there is no analogue in non-commercial cases.

The Guide now contains updated case law on specific jurisdiction over non-domicilaries and discusses personal jurisdiction over non-domiciliary defendants on an alter ego theory. In addition, the Guide addresses recent decisions illustrating how New York courts are taking a highly deferential, pro-arbitration stance toward judicial review of arbitration awards.

The Guide addresses confidentiality orders and the circumstances when submissions may need to be filed with the court under seal, accompanied by sample forms needed to assist the litigator in effectuating such filings. Importantly, the Guide also makes clear that, in the Commercial Division, there are specific requirements when responding to a document request and that boilerplate and blunderbuss objections are not permissible; instead, specific, tailored objections are required.

For those litigators who have not had to address categorical privilege logs, rather than have to create your own, the Guide provides a form for handling this task. Of course, as the long-time author of the column in The New York Law Journal on state e-discovery, the Guide's guidance on how to approach party and non-party e-discovery in the Commercial Division is much appreciated.

The chapter on motion practice provides pointed and specific guidance, as motion practice is very particular and individualized to the county and Commercial Division Justice an attorney is appearing in and before. Further, Rule 24 pre-motion conference letter procedures are discussed—a court submission is not required in non-commercial cases—which need to include a representation that the parties unsuccessfully met during a "meet and confer" to discuss the disputed issues or indicate good cause why such a meeting did not take place. In addition, the Guide reminds counsel of the requirement to submit a Rule 19-a Statement setting out the undisputed issues of material fact when moving for summary judgment, noting that there are differing approaches to such rule, with some Justices requiring a joint Rule 19 submission.

As to emergency applications and motions, the Guide provides excellent coverage and practical guidance on ex parte applications, temporary restraining orders, Yellowstone injunctions, undertakings, and—often frequently overlooked by litigators—the recovery of damages for improperly granted injunctive relief.

The Guide's discussion of trials advises attorneys that the Commercial Division requires counsel to provide the court, 10 days prior to trial, with a realistic estimate of the expected length of the trial, including direct and cross-examination, and any special rules regarding the submission of proposed jury instructions. The Guide also reminds trial counsel that they need to work together to submit to the court a list of uncontested deposition testimony to be used at trial, and to further identify objections to any deposition testimony.

The arbitration chapter explains that Justice Scarpulla has replaced retired Justice Ramos as the international commercial judge, which has jurisdiction over international arbitration issues. Additionally, this chapter provides detailed instructions on the various types of arbitration matters that come before the Commercial Division, including compelling and staying arbitrations and confirming and vacating arbitration awards.

Finally, the Guide ends with a chapter titled "Key Differences Between Commercial Division and Federal Court Practice." For those who litigate in both forums, this chapter is a helpful reference to the distinguishing features of each forum.

In sum, the Guide is a must-have resource for commercial litigators in New York.

Mark A. Berman is a commercial litigation partner at Ganfer Shore Leeds & Zauderer. He is a past chair of the Commercial & Federal Litigation Section of the New York State Bar Association (NYSBA) and the current co-chair of NYSBA's Committee on Technology and the Legal Profession.