Commercial Division Moves Towards Adopting Additional Initial Disclosure Requirements

While the Commercial Division Rules are closer to the Federal Rules of Civil Procedure than any other set of court rules in New York (including the base requirements of the CPLR), they are far from identical. One area where the Federal Rules and the Commercial Division Rules differ is that the former contain copious initial disclosure requirements, requiring parties to exchange basic discovery at the outset of a case without awaiting a request, while the latter do not.

That may not be the case for much longer. On February 7, 2025, the Administrative Board of the New York Courts issued a request for public comment on a proposal recommended by the Commercial Division Advisory Council (CDAC) to amend Commercial Division Rule 11 "to automatically exchange certain delineated categories of discovery at the outset of any litigation pending before the Commercial Division." The CDAC's memorandum in support of the proposal highlights the success of the initial disclosure regime in the federal system. It also notes that, in the absence of initial disclosure requirements in the Commercial Division Rules, individual Commercial Division justices have developed their own, often inconsistent, initial disclosure sub-regimes. According to the CDAC, the proposed amendments to Commercial Division Rule 11 would create "a uniform initial disclosure system applicable to all cases in all courtrooms across the Commercial Division."

The proposed new initial disclosure requirements are not exactly the same as those under Federal Civil Rule 26(a). Under the Federal Rules, parties must generally exchange at the outset of a case the following information or documents, "without awaiting a discovery request":

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34 , any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Fed. R. Civ. P. 26(a)(1)(A).

Not so in the New York state court system. Currently, the only initial disclosure requirement that litigants in New York state court are subject to is a defendant's obligation to furnish to the plaintiff, within 90 days of answering the complaint, "proof of the existence and contents of any insurance agreement . . . under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment." This is a statewide requirement under CPLR § 3101(f), per amendments that came into force in 2022, and not specific to the Commercial Division. Beyond this one requirement, which mirrors the fourth initial disclosure category under Federal Civil Rule 26(a), neither the CPLR nor the Commercial Division Rules contain initial disclosure requirements.

The CDAC's proposed amendment to Commercial Division Rule 11 would change that. Specifically, it would add a new Rule 11-h that would require three initial disclosures, "without awaiting a discovery request":

(i) the name and, if known, the address and telephone number of each individual that the disclosing party intends to use to support its claims or defenses, unless such use is solely for impeachment, together with a brief description of the information expected to be elicited from such individual;

(ii) a copy of all documents, electronically stored information, or other tangible things referred to in the pleadings unless they are attached to the pleadings;

(iii) a computation of each category of damages claimed by the disclosing party.

As this language shows, the proposed new initial disclosure requirements are similar, but not identical, to the parallel requirements under Fed. R. Civ. P. 26(a)(1)(A)(i)-(iii). For example, disclosure (ii) under the proposed Commercial Division Rule captures only documents "referred to in the pleadings," while the parallel federal requirement calls for automatic disclosure of any document "that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment."

The public comment period for the proposed amendment ended on March 28, 2025, and the reception was mixed. For example, the Managing Attorneys and Clerks Association announced that it neither opposed nor supported the proposal, but expressed concerns about the evidence preclusion, witness identification, and timing requirements of the proposed amendment. In contrast, the City Bar's Council on Judicial Administration, Litigation Committee and the State Courts of Superior Jurisdiction Committee announced that they outright oppose the proposal, flagging concerns about redundant and unnecessary discovery work for the parties, as well as ways in which the proposal deviates from the federal initial disclosure framework.

Commercial Division practitioners should keep a close eye on the fate of this proposed amendment to Commercial Division Rule 11. If adopted, it could have immediate implications for discovery practice in the Commercial Division.