Frequent readers of this blog know that we are not shy in acknowledging the Commercial Division’s status as the leading forum for resolving complex business disputes. This reputation can be, in part, largely attributed to the ongoing efforts of the Commercial Division Advisory Council, which continually assesses and suggests practical, significant modifications to the Commercial Division Rules. These changes aim to maintain the utmost level of efficiency and reinforce the Commercial Division’s standing as a global leader in resolving commercial disputes.
The Advisory Council has recently proposed a significant rule change: an amendment to Commercial Division Rule 11 to mandate immediate exchange of specified categories of information at the outset of any litigation in the Commercial Division, eliminating the need for formal discovery requests. This proposal seeks to reduce some of the costs, delays, and complications associated with discovery, and to allow parties to “competently assess the risks of trial and the benefits of potential settlement in the early stage of the litigation.”
The proposal recommends a more standardized disclosure system for all Commercial Division cases, replacing the existing practice in which individual judges often establish their own “partial-disclosure regimes” to facilitate discovery. The Advisory Council believes that having a Commercial Division rule tailored to the discovery needs of complex commercial litigation will create a “more uniform and consistent approach, benefiting counsel and preventing the spread of individual judges’ idiosyncratic practices.”
Does the proposed rule ring a bell for anyone? If it does, it’s probably because it closely resembles Federal Rule of Civil Procedure Rule 26(a)(1), which also requires the exchange of initial disclosures to streamline discovery and expedite litigation. The chart below highlights some of the significant similarities between the two rules:
The Advisory Council has recognized clear parallels between these two rules, using the success and effectiveness of initial disclosures in federal cases as evidence that the early exchange of information “minimizes the burden, delay, and expense of discovery, while allowing parties to competently assess the risks of trial and the benefits of potential settlement in the early stages of litigation.” Several states have adopted similar systems, such as Delaware’s Complex Commercial Litigation Division’s early disclosure requirement, which also mirrors FRCP 26(a).
As a professional Commercial Division litigator who is always looking for ways to enhance effectiveness and efficiency, I can’t help but applaud any effort to streamline the discovery process in litigation. It is a well-known fact that this process can be a heavy burden, both in terms of time and financial resources, particularly for clients. While, on the surface, this approach may appear to be a logical step towards increased efficiency, I question whether it will truly have a substantial impact on the overall cost and time spent on discovery. During the early stages of litigation, many parties may not have a complete list of trial witnesses, an accurate damages calculation, or all the documents referenced in the pleadings—largely because discovery has not yet occurred. This rule could lead to unnecessary duplication of effort, as attorneys will be required to provide the available information upfront, only to update it later as discovery progresses. The question remains: will this approach genuinely lead to a reduction in discovery costs and increase the overall efficiency of discovery?
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