Yesterday Chief Administrative Judge Lawrence Marks issued a memorandum which outlined plans for resuming non-essential operations remotely. In previous posts we covered Chief Judge DiFiore’s administrative order suspending filings for all non-essential matters statewide as well as the courts’ transition to virtual operations. As the memo noted, virtual operations are up and running throughout the state and courts have been hearing "essential" matters (which are defined in Chief Judge DiFiore’s administrative order) via videoconference and telephone. In an effort to move other cases forward and avoid further backlog, the memo announced priorities for bringing non-essential matters back online. 

Here are the highlights:

  • Filing of new matters still suspended to prioritize ongoing cases.  The memo made clear that Chief Judge DiFiore's administrative order suspending all non-essential filings is still in effect.  As a result, the memo instructed judges to prioritize ongoing cases and review their calendars to evaluate which cases they may be able to move forward remotely. One issue the memo did not address is whether judges may still accept papers in ongoing cases even though filing is still suspended.  For instance, there are likely a number of cases where a motion is pending but responsive papers cannot be filed as a result of the current administrative order (e.g. summary judgement motions, motions to dismiss and motions to compel).  Although the memo did not suggest this, one possible step judges could take is to allow responsive papers to be submitted on pending motions via email until e-filing resumes and allow oral argument to proceed telephonic ally if necessary.  This would allow motions to be fully submitted for decision instead of waiting until e-filing resumes.
  • Encouraging remote conferences to promote resolution.  Justice Marks’ memo also encouraged the judges to pay special attention to cases where the judges think a resolution is possible and to consider scheduling conferences via Skype or teleconference in those cases.  If successful, this could help reduce the backlog of of pending cases where settlement is possible and also move other cases forward that may be waiting for a discrete issue to be resolved (e.g. a discovery dispute).  Remote conferencing could also help the judge and the parties modify existing discovery schedules and discuss logistics for document productions and depositions.  
  • Reducing backlog in high volume parts.  The memo also stated that the courts will review the status of certain high volume parts in New York City and other high-density areas and consider assigning some of those cases to other judges to hold conferences and try to resolve the case.  Lawyers with cases in high-volume court parts should be aware of this possibility and consider the impacts on the case. 
  • Encouraging review of submitted motions.  The memo also encouraged judges to review and decide any motions that are fully submitted.  Because of e-filing, the judges and law clerks have remote access to all of the necessary papers.  Justice Marks also said that he intends to activate the law departments in the high-volume counties to assist judges with researching and writing decisions.  As a result, lawyers with fully submitted motions pending in these courts may receive a decision even though operations are limited. 

The memo did not announce any specific timeline for resuming non-essential matters but it is a promising development for lawyers with cases that are currently in limbo in the state courts.  This may also be an opportunity to implement some much-needed changes to current practices in the state's trial courts.  Until now, the courts have largely required in-person conferences, which can be costly and leave little incentive for the parties to meet and confer in advance of the appearance.  However, recent changes to the practice rules, especially in the Commercial Divisions, have encouraged lawyers to try to resolve their differences before involving the court and, where court intervention is necessary, the rules permit expedited procedures such as conference calls and letter motions. 

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