Administrative Order 141/22 Brings More Changes to New York’s Uniform Civil Rules

On July 1, 2022, Administrative Order 141/22 (“AO 141/22”) became effective, revising many of the previous changes to New York’s Uniform Civil Rules (“Uniform Rules”) made by Administrative Order 270/20 (“AO 270/20”), including the Statement of Material Facts requirement. We extensively covered AO 270/20 in a previous article, and in another article, we discussed how the changes made by AO 270/20, particularly the requirement that a Statement of Material Facts be submitted with most motions for summary judgment, were being strictly, and sometimes harshly, enforced by the courts.

AO 141/22 is designed to supersede some of the changes made by AO 270/20. Those changes are discussed below, but generally regard litigation papers, disclosure, and trial.[1]. Every litigant and litigator should familiarize themselves with them.

Papers

1. Section 202.5(a)(2) – Papers Filed in Court

New Section 202.5(a)(2) is only slightly revised from its prior form. Originally, it required memoranda of law, affidavits, and affirmations that exceeded 4,500 words to include bookmarks which list “the document’s contents and facilitat[e] easy navigation by the reader within the document.” New Section 202.5(a)(2) keeps that requirement, but it adds that the requirement only applies to documents “which [were] prepared with the use of a computer software program,” and applies “[u]nless otherwise directed by the court.” For most legal practitioners and litigants, the slight revisions to Section 202.5(a)(2) are immaterial, but for those who prefer handwriting, or perhaps typewriting, their papers as opposed to preparing them with a “computer software program,” the revisions are a minor victory.

2. Section 202.8-b – Length of Papers

There are generally two changes to Section 202.8-b. Previously, Section 202.8-b, similar to original Section 202.5(a)(2), did not delineate between computer-prepared documents and handwritten/typewritten documents. Now, Section 202.8-b’s 7,000-word limit for documents in chief and 4,200-word limit for documents in reply, are only applicable to computer-prepared documents. Likewise, Section 202.8-b’s requirement that every brief, memorandum, affirmation, and affidavit include a certification by the counsel who filed the document stating that it complies with the word limit, is now only applicable to computer-prepared documents.

Under the revised Section 202.8-b, handwritten/typewritten documents received their own subsections, which state that those documents in chief are limited to 20 pages while responsive handwritten/typewritten documents are limited to 10 pages.

Revised Section 202.8-b also includes a new subsection which clarifies that cross-motions are subject to the foregoing requirements. Cross-motions in chief must abide by the 7,000-word or 20-page limit, depending on the method of preparation, and responsive papers to cross-motions cannot exceed the 4,200-word or 10-page limit, depending on whether the responsive papers are computer prepared or otherwise.

3. Section 202.8-g – Motions for Summary Judgment; Statements of Material Facts

All of these changes are important, not least of which are the changes to Section 202.8-g, which was first introduced by AO 270/20. Under the original Section 202.8-g, Statements of Material Facts were required on almost all motions for summary judgment, which required numbered paragraphs of concise statements with citations to evidence in the record. Papers opposing motions for summary judgment had to include a counter Statement of Material Facts, or like document, that specifically responded to each aversion in the movant’s Statement of Material Facts with relevant evidence from the record. Failure to file such a counter Statement of Material Facts resulted in the averments in the Statement of Material Facts being admitted by the opposing party. And, as discussed in our previous article, sometimes a party’s failure to submit a Statement of Material Facts or counter Statement of Material Facts was fatal to their position in the summary judgment motion sequence.

The revisions to Section 202.8-g provide that a Statement of Material Facts is no longer a blanket requirement, but that “the court may direct” it. Additionally, in the case where a Statement of Material Facts is directed by the court, an opposing party’s failure to file a counter Statement of Material Facts no longer requires the court to deem the averments in the Statement of Material Facts as admitted. Instead, courts now retain discretion on that issue, with the wording in Section 202.8-g being changed from “will be deemed to be admitted” to “may be deemed to be admitted for purposes of the motion.” Thus, even if the court does deem the averments in the Statement of Material Facts admitted, those admissions would only last for the motion sequence, providing further relief from the prior, harsh version of Section 202.8-g. And a further revision to Section 202.8-g provides that “[t]he court may allow any such admission to be amended or withdrawn on such terms as may be just,” providing further potential relief.

A new subsection to Section 202-8-g also provides that where a Statement of Material is required and not filed, “the court may order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon compliance, or may take such other action as may be just and appropriate.” Similarly, the new subsection also speaks to the consequences of a party’s failure to oppose a required Statement of Material Facts, stating “the court may order compliance and adjourn the motion, may, after notice to the opponent and opportunity to cure, deem the assertions contained in the proponent’s statement to be admitted for purposes of the motion, or may take such other action as may be just and appropriate.” It appears that these new enumerated consequences, while leaving some discretion to courts, are meant to mitigate the harsh results, some of which are pointed out in our previous article, of not complying with Section 202.8-g, .

Disclosure

1. Section 202.20 – Interrogatories

Section 202.20 also received revision by AO 141/22, although slight. Previously, Section 202.20 stated that interrogatories were limited to 25 unless the court ordered otherwise. Now, due to AO 141/22, Section 202.20 adds that parties can agree to a different number of interrogatories.

2. Section 202.20-a(b) – Privilege Logs

There is also a minor revision to Section 202.20-a(b) by AO 141/22. Prior, Section 202.20(b) required that there be a court order memorializing the scope of privilege review, the amount of information to be set out in the privilege log, the use of categories, and other items. Now that court order is not a blanket requirement; the “shall” in previous Section 202.20 has been changed to “may” by AO 141/22.

3. Section 202.20-c(c) – Requests for Documents

Prior, Section 202.20-c(c) required that the responding party to a request for documents verify, for each request, whether the production of documents in its possession, custody, or control that are responsive to the individual request is complete, or whether there are no documents in its possession, custody, or control that are responsive to the individual request. Revised Section 202.20-c(c) now states that, instead of verifying the foregoing, the responding party must have an affidavit from it to that effect.

4. Section 202.20-j – Adherence to the Electronically Stored Information (“ESI”) Guidelines Set Forth in Appendix Hereto

New Section 202.20-j now simply reads, “parties and nonparties should adhere to the Electronically Stored Information (‘ESI’) Guidelines set forth in Appendix A hereto.” Appendix A can be found here.

Trial

1. Section 202.20-h – Pre-Trial Memoranda, Exhibit Book, and Requests for Jury Instructions

Previously, Section 202.20-h(a) mandated that counsel “shall” submit pre-trial memoranda, which could be no longer than 25 pages. Now, subsection (a) removes “shall” and states that “[t]he court may direct that counsel submit pre-trial memoranda” and adds that the court can alter the 25-page limit. Memoranda in response are still not permitted.

The revision to subsection (b) of Section 202.20-h is similar. Prior, subsection (b) required that “[o]n the first day of trial or at such other time as the court may set, counsel shall submit an indexed binder or notebook, or the electronic equivalent, of trial exhibits for the court’s use.” Now, the following language is added at the beginning of that provision, making the requirement at the discretion of the court: “[t]he court may direct that on the first day . . . .” Subsection (b) was also revised from “[a] copy for each attorney on trial and the originals in a similar binder or notebook for the witness shall be prepared and submitted” to “[s]uch submission shall include a copy for each attorney on trial and the originals in a similar binder or notebook for the witness.” The upshot is if the court requires the subsection (b) submission, make sure it includes the attorney and witness copies.

No change was made to subsection (c) of Section 202.20-h, which regards jury instructions.

2. Section 202.20-i – Direct Testimony by Affidavit

Revised Section 202.20-i only changes the previous version slightly by adding that direct testimony by affidavit at a non-jury trial or evidentiary hearing has to be first requested by a party before it can be permitted by the court, and the requesting party can only use an affidavit for direct testimony of the requesting party’s witness. Revised Section 202.20-i also no longer includes the language that “the court may not require the submission of a direct testimony affidavit from a witness who is not under the control of the party offering the testimony.” The revised Section 202.20-i does not interfere with the opposing party’s right to object to the statements in the direct testimony affidavit nor the right to cross-examine or redirect the witness.

3. Section 202.26 – Settlement and Pretrial Conferences

Also minor is the revision to subsection (c) of Section 202.26, which previously stated that courts may direct counsel before or during a trial to consult regarding expert testimony to be offered to determine which aspects of the experts’ testimony were not disputed. Now, subsection (c) clarifies that the court can only direct such conferences before or during non-jury trials and hearings.

4. Section 202.34 – Pre-Marking of Exhibits

Prior, Section 202.34 stated that counsel for both parties shall consult prior to trial to, in good faith, attempt to agree upon trial exhibits that would be offered into evidence without objection and that “[p]rior to commencement of trial, each side shall then mark its exhibits into evidence, subject to court, as to those to which no objection has been made.” And as to contested exhibits, prior Section 202.34 provided that the court “will” rule on those objections at the “earliest possible time.”

Revised Section 202. 34 does not change much regarding the foregoing but adds that the marking of exhibits prior to commencement of trial requirement can be altered by the court and that the court “should” (instead of “will”) rule on objections as to objected to exhibits “at the earliest possible time.” 

5. Section 202.37 – Scheduling Witnesses

The revisions to Section 202.37 by AO 141/22 only add that the order of witnesses on submitted witness lists, as well as the length of testimony per witness, is advisory only, and the court may permit witnesses to be called in a different order.

[1] AO 141/22 also made changes to the rules governing matrimonial actions, but those changes are not the subject of these writings.