I suggest that related procedures could be adopted at the appellate level, to quickly ascertain whether a resolution of discovery disputes can be reached before the formal appeal is perfected. Appellate challenges to discovery rulings could be initially handled using a modification of our "Special Master" program, which is normally used for selected appeals to try to achieve a negotiated resolution of the dispute. A special master with commercial law expertise could conduct an initial review of the issues, and we could assign one judge from our newly-constituted Complex Commercial bench, to be available to consult with the special master and review her or his recommended resolution.
Indeed, it might be worthwhile to consider experimenting with assigning a specific justice, or special master/justice combination, to a specific Commercial Division part, in order to best expedite the informal preliminary review process. If a formal appeal and ruling on the discovery appeal is required, we cannot, of course, unilaterally impinge on the appellant's statutory rights to employ all the normal interlocutory appeal procedures. We could, however, consider modifying the procedures for such appeals, since they are in any event non-enumerated and therefore generally not argued.
The taskforce recommended both the use of letter-briefs and smaller benches for these appeals; we could form special four-justice rather than the usual five-justice benches to hear these appeals,5 if doing so would allow for greater expedition. Perhaps allowing the litigants to employ a less formal letter-brief format would serve to reduce the expense. Slightly shorter deadlines for perfecting such appeals might be a workable option as well, since the legal issues to be addressed should be relatively circumscribed. There may be even more ways that the Appellate Division could contribute toward making New York State's court system a stellar option for business litigation. The open dialogue must consider every suggestion and the court must move quickly to adopt those changes that could have a significant positive impact on improving New York's place in the universe of commercial litigation.
David B. Saxe is an associate justice on the Appellate Division, First Department.
2. Brendan Pierson, "With Nod to Delaware, N.Y. Courts Define Commercial Law," NYLJ Dec. 13, 2012 at 1, col. 5)
3 See e.g., Dominic Bencivenga, Corporate Update, "Lawmakers' Stepchild? Few Business Bills Embraced by State Legislature, NYLJ, July 309, 1998 at 25, col. 6
4. NY3d, 2012 NY Slop Op 8053 [p11/27/12] revg. 87 AD3d 889, 2011 NY Slip Op 6455 [1st Dept. 2011].
5. NY Const. Art §4