What discovery limits apply in the New York Commercial Division?

This page explains New York law: the disclosure provisions of the Civil Practice Law and Rules (CPLR) and the Commercial Division's own Rules of Practice in 22 NYCRR 202.70(g). The CPLR sets the broad starting point, "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101(a)). The Division's rules then cap and organize that disclosure, with the stated aim of making it proportional and less costly (Preamble to Rule 11). KOR Law LLP's commercial litigation practice handles contract, fraud, UCC, fiduciary duty and injunction disputes, many of which are litigated under these rules. Whether a case qualifies for the Division at all is covered in whether your business dispute belongs in the New York Commercial Division.

How does discovery run in a Commercial Division case, step by step?

1. Consultation. Before the preliminary conference, counsel must confer about settlement, discovery, electronically stored information, the timing of expert disclosure and mediation (Rule 8; Rule 11-c(b)). Counsel must know enough about the client's technology systems to discuss electronic discovery competently (Rule 1(b)).
2. Initial disclosures. Unless the parties stipulate or the court orders otherwise, each party must, within 14 days after that consultation, name its supporting witnesses, provide documents referred to but not attached in the pleadings, and compute each category of damages (Rule 11-h).
3. Preliminary conference. It is held within 45 days of assignment to a Commercial Division justice, or as soon after as practicable. If the RJI came with a dispositive motion, the conference follows within 30 days after the decision (Rule 7).
4. The preliminary conference order. The order sets a full disclosure schedule, including the note of issue and trial dates, and may limit interrogatories, change the deposition limits, or schedule limited-issue discovery in aid of early motions or settlement (Rule 11(d) to (f)).
5. Documents and privilege. Responses to document requests must be specific (Rule 11-e), electronic records are produced in a usable form (Rule 11-c), and privilege logs follow Rule 11-b.
6. Depositions. Up to 10 per side, 7 hours per deponent, with special counting for companies (Rules 11-d, 11-f).
7. Expert disclosure. At least 30 days before fact discovery ends, the parties confer on an expert schedule, and expert disclosure must be completed no later than four months after fact discovery ends. The note of issue cannot be filed until it is complete (Rule 13(c)).

The federal column comes from the Federal Rules of Civil Procedure, which govern civil cases in the United States district courts. The choice between the two systems is weighed in federal court or state court for a New York business dispute.

What do the interrogatory rules actually allow?

Commercial Division interrogatories are narrower than many business owners expect. Unless the court orders otherwise, during discovery they are limited to the names of witnesses with material knowledge, the computation of each category of damages, and the existence, custodian, location and general description of material documents, including insurance agreements (Rule 11-a(b)). Anything else needs the parties' consent or a court order for good cause (Rule 11-a(c)). Interrogatories asking for the other side's claims and contentions may be served at the end of other discovery, at least 30 days before the discovery cut-off, unless the court has ordered otherwise (Rule 11-a(d)). The 25 limit applies to consolidated actions as well (Rule 11-a(a)).

How are depositions of a company and its people counted?

The deposition of an entity through one or more representatives counts as a single deposition, even if several people testify for it (Rule 11-d(c)). But each deposition of an officer, director, principal or employee who is also a fact witness counts separately (Rule 11-d(d)). For the 7-hour limit, an entity deposition is likewise treated as one, and the combined time may be enlarged by agreement or by leave of court, which "shall be freely granted" (Rule 11-d(e)). The court may change the number or length of depositions for good cause (Rule 11-d(f)).

A notice to a company may list the matters for examination with reasonable particularity. If it names no individual, the company must designate its witnesses, and the matters each will cover, no later than ten days before the deposition (Rule 11-f(c)). Those witnesses must testify about information known or reasonably available to the company (Rule 11-f(f)). In disputes among owners, much of this ground is records the owners already fight over before any lawsuit, as described in the warning signs that a partnership or LLC dispute is headed to court.

What are the rules for documents, emails and privilege?

• Specific responses. For each request, the responding party must either agree to produce or state its objection with reasonable particularity, say whether documents are being withheld on that objection, and explain how it is limiting its production (Rule 11-e(a), (b)).
• A completion date. A date certain for finishing document production is fixed no later than the start of depositions, and no later than one month before fact discovery closes each side states, request by request, whether its production is complete (Rule 11-e(c), (d)). The duty to supplement under CPLR 3101(h) continues (Rule 11-e(e)).
• Electronic records. Absent agreement or an order, electronic records are produced in the form ordinarily maintained or in a searchable, usable format. Costs must be proportionate to benefits, and a court may deny disproportionate requests or make the requesting side advance the cost (Rule 11-c(c), (d)).
• Privilege logs. The Division prefers logs by category, supported by an attorney certification, over document-by-document logs; if a party insists on a full log, the court may shift its cost for good cause, and each uninterrupted email chain counts as one entry (Rule 11-b(b)).
• Mistaken production. Inadvertently producing privileged material is not a waiver if the producing party took reasonable precautions and promptly gave notice (Rule 11-c(g)).
• Confidentiality. Where the justice so elects, parties use the Division's form confidentiality order in Appendix B, or Appendix F for attorneys' eyes only protection, and must explain any changes (Rule 11-g).

Contract and sale of goods cases often turn on purchase orders, invoices and email confirmations, which is why these rules matter in disputes over a sale of goods between businesses.

Is discovery stayed while a motion to dismiss is pending?

Under the CPLR, serving a notice of motion under rule 3211, 3212 or section 3213 stays disclosure until the motion is decided, unless the court orders otherwise; a motion based only on improper service does not stay disclosure unless the court orders it (CPLR 3214(b)). In the Commercial Division, the court "will determine, upon application of counsel," whether discovery will be stayed under CPLR 3214(b) while a dispositive motion is pending (Rule 11(g)). The preliminary conference order can also schedule dispositive motions before disclosure or after limited-issue disclosure (Rule 11(d)). Fraud claims draw early motions often, because the circumstances of a fraud must be stated in detail (CPLR 3016(b)); the elements are covered in what you have to prove to win a fraud claim in a New York business case.

Where speed matters more, a party may ask for an immediate trial or evidentiary hearing on a decisive factual issue, including on a preliminary injunction motion, and may request limited expedited discovery aimed at that issue (Rule 9-a). That route is discussed in how fast you can get a TRO or preliminary injunction in a New York business dispute. The same rule names statute of limitations motions among those where a hearing on a factual issue can be useful (Rule 9-a(e)); the deadlines themselves are explained in how long you have to sue for breach of contract, fraud, or a sale of goods in New York.

How are discovery fights resolved?

If the justice's Part Rules address discovery disputes, they govern. If not, counsel must first confer in good faith; the moving party then sends a letter of no more than three single-spaced pages asking for a conference, and the other side has four business days to answer in the same length, after which the court schedules a telephone or in-court conference (Rule 14). Deadlines in scheduling orders must be strictly met, extension requests must be made before a deadline expires, and noncompliance can bring sanctions under CPLR 3126 (Rule 13(a)). If documents demanded before a deposition are not produced by the date fixed, the requesting party may ask the court to bar the other side from using them at trial (Rule 13(b)).

What changes the answer for discovery limits?

• The preliminary conference order. It can set different interrogatory limits and alter the deposition limits (Rule 11(f); Rule 11-a(a)).
• A stipulation. The deposition limits apply unless the parties stipulate otherwise (Rule 11-d(a)).
• Good cause. The court may change the number or length of depositions (Rule 11-d(f)) and allow broader interrogatories (Rule 11-a(c)).
• The justice's Part Rules. They control discovery disputes where they address them (Rule 14), and decide whether the form confidentiality order applies (Rule 11-g).
• Accelerated adjudication. Parties who consent accept tighter limits and trial readiness within nine months of the RJI (Rule 9).
• A pending dispositive motion. Disclosure may be stayed (CPLR 3214(b); Rule 11(g)).
• Non-parties. Their depositions are subject to restrictions in other law, and the requesting party pays a non-party's reasonable costs of producing electronic records (Rule 11-d(b); Rule 11-c(e)).

For example: counting depositions in a distribution dispute

Common mistakes

• Serving broad early interrogatories. Until late in discovery, interrogatories are limited to witnesses, damages and documents unless the parties consent or the court orders more (Rule 11-a(b), (c)).
• Boilerplate objections. Each objection must be stated with particularity, along with whether documents are being withheld because of it (Rule 11-e).
• Assuming a motion freezes discovery. In the Division the court decides on application whether to stay disclosure (Rule 11(g)).
• Letting a deadline pass, then asking. Extension requests must be made before the deadline expires (Rule 13(a)).
• Treating the expert schedule as an afterthought. The conferral must happen at least 30 days before fact discovery ends, and late expert disclosure without good cause is precluded at trial (Rule 13(c)).
• Failing to preserve electronic records. A party should take reasonable steps to preserve the electronic records it has a duty to preserve (Rule 11-c(h)).

What to do this week

1. Issue a written instruction inside the business to keep emails, texts and files about the dispute.
2. List the people with knowledge on both sides and decide which depositions matter most within a limit of 10.
3. Identify where the key records are kept and in what format, ready for the Rule 8 consultation.
4. Compute each category of damages, since initial disclosures require it (Rule 11-h).
5. Flag privileged communications early so a categorical privilege log can be proposed.
6. Check the justice's Part Rules for discovery dispute procedures.

Frequently asked questions

Can the parties agree to more depositions or interrogatories?

Yes. The deposition limits apply "unless otherwise stipulated to by the parties or ordered by the court" (Rule 11-d(a)), and the interrogatory limit yields to a different limit in the preliminary conference order (Rule 11-a(a)). Put any agreement in writing and submit it to the court for approval.

Can depositions be taken by video?

The court may order remote depositions on consent of the parties or on a motion showing good cause, considering factors such as distance, safety, whether the witness is a party and the importance of the testimony (Rule 37). The Division offers a form remote deposition protocol in Appendix G.

Do requests to admit have a limit?

The default Commercial Division rules discussed here do not set a number for them. Under accelerated adjudication, though, the parties are limited to five requests to admit (Rule 9(c)(5)(i)).

What must an expert's written disclosure contain?

Unless stipulated or ordered otherwise, a retained expert's disclosure must include a signed written report with all opinions and their basis, the data considered, exhibits, qualifications with publications from the previous 10 years, prior testimony from the previous four years, and the compensation paid (Rule 13(c)).

Is this the same as post-judgment disclosure?

No. These rules govern disclosure while a case is being litigated. After a money judgment, a creditor uses different tools, such as the subpoenas described in whether you have to answer an information subpoena in New York.

Can a party delay initial disclosures until its investigation is finished?

No. Initial disclosures are based on the information then reasonably available. A party is not excused because it has not fully investigated the case, because it challenges the other side's disclosures, or because the other side has not yet made its own (Rule 11-h(c)).

Can a co-owner get company records before any lawsuit is filed?

Often, yes, through statutory and common-law inspection rights that exist outside litigation. They are explained in how to get access to company books and records in New York.