Non-Party Standing to Seek Protective Orders
The Committee on State Courts of Superior Jurisdiction expressed support for A.6554/S.4850, which would amend CPLR section 3103(a) to permit non-parties who are not actually served with a subpoena, but whose records are nevertheless sought by the subpoena, to seek a protective order. The proposed amendment, the report argues, is vital because it extends important protections against discovery abuse to non-parties whose records and/or personal or confidential information are the subject of a subpoena.
Sentences of Probation
In a joint report, the Committees on Criminal Courts and Corrections and Community Reentry expressed support for A.4582-B/S.4664-A, which would change mandatory terms of probation to discretionary terms and eliminate the requirement of pre-sentence investigations in limited circumstances and written reports in New York City when the parties and the judge have agreed to a sentence of imprisonment of a year or less. Individualized sentences, the report urges, will lead to more just, proportional punishments, result in a more effective use of probation services, and save judicial resources.
Judicial Assistance to Unrepresented Litigants
The Association submitted comments to the NYS Office of Court Administration regarding a proposed amendment to the Code of Judicial Conduct that would provide it is not a violation of the applicable rule for judges to facilitate the ability of unrepresented litigants to have their matters fairly heard. The comments, developed with contributions from the Committees on Civil Courts, Pro Bono and Legal Services and the Council on Judicial Administration, applauded this initiative, stressing that judges should be encouraged to be as helpful as possible to unrepresented litigants, consistent with the other provisions in the Code of Judicial Conduct. The comments also addressed the rule's drafting and urged that guidelines be developed to aid judges in implementing the rule, and that, through the guidelines or other appropriate mechanism, non-judicial personnel should be permitted and encouraged to assist unrepresented litigants.
Settlement of Cases in Federal Court
Rule 68 of the Federal Rules of Civil Procedure was designed to encourage settlement of civil cases in federal court, yet it provides little incentive to do so. In an effort to promote discussion within the bar of how best to promote the settlement of civil cases in the federal courts, the Committee on Federal Courts issued a report which provides an overview of Rule 68, reviews the issues related to the settlement of cases in federal court, and analyzes how best to encourage settlement, including the pros and cons of amending the Rule to include a fee-shifting provision.
In addition, the Committee on Federal Courts wrote to the Administrative Office of the U.S. Courts recommending that Rule 68 be amended to permit plaintiffs as well as defendants to make offers of judgment under the Rule. The Committee expressed its concern that Rule 68 has not succeeded in its ostensible purpose of encouraging early case settlement, at least in commercial cases, and is rarely used in that category of cases. In addition to making the Rule reciprocal, the Committee recommended further study of possible methods to enhance the costs recoverable by plaintiffs who successfully invoke Rule 68 by, for example, imposing a multiplier on recoverable costs or some other mechanism, to make a symmetrical rule more fair to plaintiffs and defendants, and to motivate plaintiffs to use the Rule.
Non-Party Deposition Subpoenas
In a letter to the Administrative Office of the U.S. Courts, the Committee on Federal Courts proposed that the Federal Rules of Civil Procedure be amended to provide non-parties who are served with a Rule 30(b)(6) deposition subpoena greater protections against undue burdens. Specifically, the amendments call for the adoption of a minimum notice period for such non-party depositions, as well as an automatic stay of such depositions upon the filing of a motion for a protective order. Such an amendment, the letter notes, would address the problem that non-party recipients of deposition subpoenas cannot postpone or limit the scope of such a deposition without moving for and obtaining a protective order before the date of the scheduled deposition, which can be required by subpoena on very short notice.