
Discovery disputes have long been a source of frustration for litigants, attorneys, and courts alike. As the New York State Commercial Division Advisory Council recently observed, “[d]iscovery disputes were viewed nearly 40 years ago, and remain today, the most prolific generator of pre-trial motions.”
To address this persistent problem, Chief Administrative Judge Joseph A. Zayas signed Administrative Order AO/299/26 on October 8, 2026, amending Rule 14 of the Rules of the Commercial Division (22 NYCRR § 202.70). The amendments, which take effect December 1, 2026, strengthen the obligation of counsel to meaningfully confer before seeking judicial intervention in discovery disputes.
The Problem: Too Many Discovery Disputes, Too Little Cooperation
In its February 24, 2026 memorandum recommending the amendments, the Commercial Division Advisory Council cited Eaton v. Chahl, 146 Misc. 2d 977 [Sup Ct, Rensselaer County 1988], in which the court observed:
“Most seasoned litigators know that, with a modicum of good sense, discovery disputes can and should be resolved by the attorneys without the necessity of judicial intervention.”
Nearly four decades later, that observation remains as relevant as ever. Unfortunately, the continued proliferation of discovery motions suggests that a “modicum of good sense” does not always prevail in litigation.
The amendments seek to change that by making clear that the obligation to confer in good faith is more than a procedural formality.
What Has Changed?
1. A More Meaningful Meet-and-Confer Requirement.
Amended Rule 14(b) requires counsel, absent exigent circumstances, to engage in a “thorough, good-faith attempt to resolve or narrow” discovery disputes before seeking judicial intervention.
Importantly, the Rule calls for direct personal consultation, such as through in-person or electronic conferences. As the Advisory Council explained, perfunctory exchanges of emails, letters, or telephone calls are not enough. Counsel must engage in meaningful discussions aimed at resolving disputes or, at a minimum, narrowing the issues requiring judicial attention.
2. More Detailed Certifications of Good Faith.
Where a dispute remains unresolved, counsel seeking court intervention must submit a letter not exceeding three single-spaced pages, together with a certification describing the parties’ efforts to resolve the dispute.
The certification must identify:
- The dates and manner of consultation;
- The attorneys and other participants involved;
- The specific results achieved; and
- Whether the parties discussed cost-shifting, proportionality, or alternative methods of discovery that might resolve or narrow the dispute.
Alternatively, counsel must establish good cause for the absence of consultation.
Affected opposing parties and non-parties must submit responsive letters within four business days and may challenge the initiating party’s certification.
3. Greater Flexibility in Judicial Conferences.
Amended Rule 14(c) provides that, following the parties’ submissions, the court will schedule a conference, which may be conducted in person or electronically, either by the court or by non-judicial personnel.
Where the conference is conducted by the court, the court may issue an appropriate order without requiring formal motion practice or permit a formal motion where necessary. Conferences conducted by non-judicial personnel remain subject to Rule 14-a.
4. Stronger Consequences for Noncompliance.
Perhaps most significantly, amended Rule 14(d) expressly authorizes courts to deny discovery motions, without prejudice to renewal, where counsel fail to comply with the Rule’s requirements.
Alternatively, the court may hold a motion in abeyance pending completion of its informal dispute-resolution procedures.
Previously, Rule 14 expressly contemplated holding motions in abeyance but did not expressly authorize their denial for noncompliance.
What This Means for Commercial Division Practitioners
The amendments reinforce a fundamental principle of Commercial Division practice: discovery should advance the resolution of commercial disputes, not become a separate battleground that unnecessarily increases litigation costs and burdens judicial resources.
The revised Rule also preserves the authority of individual Commercial Division Justices to establish their own procedures for handling discovery disputes. Accordingly, practitioners appearing before Westchester Commercial Division Justices, Hon. Linda Jamieson and Hon. Gretchen Walsh, and throughout the state, should continue to consult the applicable Part Rules.
Ultimately, the message is straightforward: before asking the court to resolve a discovery dispute, counsel must make a genuine effort to resolve it themselves.
The hope is that these amendments will encourage greater cooperation, reduce unnecessary motion practice, and further the Commercial Division’s longstanding commitment to the efficient and cost-effective resolution of complex business disputes.
The amendments take effect December 1, 2026.
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