Commercial Litigation Update

Effective April 1, 2015, the Commercial Division of the New York State Supreme Court promulgated a series of reforms to the Rules of Practice for the Commercial Division, including the addition of new Rule 11-e, which provides specific requirements for responding and objecting to document requests. In particular, Rule 11-e(a)-(b) requires parties to provide particularized responses and specify in detail whether documents are being withheld in response to all or part of the requests, and Rule 11-e(c) requires a date for the completion of document production prior to depositions. These are markedly different than those required by the Uniform Civil Rules that govern non-Commercial New York State Supreme Courts and County Courts, and have been the subject of much discussion by courts and practitioners in the ensuing years. However, one significant requirement of Rule 11-e that is often overlooked concerns Rule 11-e(d).

In particular, Rule 11-e(d) provides as follows:

(d) [b]y agreement of the parties to a date no later than one (1) month prior to the close of fact discovery, or at such time set by the Court, the responding party shall state, for each individual request: (i) whether the production of documents in its possession, custody or control and that are responsive to the individual request, as propounded or modified, is complete; or (ii) that there are no documents in its possession, custody or control that are responsive to the individual request as propounded or modified.

By now, the story of two New York attorneys facing scrutiny for citing nonexistent cases generated by the artificial intelligence (“AI”) tool ChatGPT has made national (and international) headlines. Late last month, a federal judge in the Southern District of New York sanctioned the attorneys and their firm $5,000. The court’s decision (Roberto Mata v. Avianca, Inc., No. 22-cv-1461-PKC (S.D.N.Y. June 22, 2023) (ECF No. 54)) provides a humbling reminder of both an attorney’s responsibilities in ensuring the accuracy of his or her filings, and the limits of certain technologies in the legal profession.