This is Part IV in a series of articles explaining the fundamentals of Commercial Division practice. The article addresses key differences in discovery procedure in the Commercial Division. Part I in the series, addressing the first steps taken when litigating in the Commercial Division, can be found here; Part II, addressing initial steps such as filing and pleading, can be found here; and Part III, addressing the timeline of litigation in the Commercial Division, can be found here.

Preliminary Conference

At the preliminary conference, which typically is scheduled soon after issue is joined, the court (often via the justice's law secretary) sets the timing and scope of discovery. Parties may serve certain discovery devices prior to the preliminary conference, but often agree to hold off serving and/or responding to discovery until after the conference is held. Parties are required to meet and confer prior to the conference about resolution of the case and alternative dispute resolution, discovery (including e-discovery), expert discovery, and privilege issues (22 NYCRR Section 202.70[g], Rules of the Commercial Division [Comm'l Div.] Rule 8(a) (meet and confer requirements), Rule 11-b[a] (privilege), Rule 11-c[a]-[b] [e-discovery]; Appendix A). Note that the court will consider parties' disclosures regarding document collection and review if a dispute arises (Comm'l Div. Rule 11-b(a)). Model stipulations concerning confidentiality are available in the Appendices and are usually agreed upon, with any (minor) additions submitted to the court for approval (see Comm'l Div. Rules, Appendix B [confidential information], Appendix F [same with attorneys' eyes-only provision]). The court may also, and usually does, require the parties to submit a proposed scheduling order. See, e.g., Joel M. Cohen, "Part 3 – Practices and Procedures," (requiring parties to submit a proposed Preliminary Conference Order using standard form).