A rule proposed last week would encourage the use of hyperlinking in documents that are electronically filed with the Commercial Division of New York State Supreme Court as a means of increasing the efficiency with which the bench and bar can review the authorities and other materials cited in those frequently dense and lengthy filings.
The change is outlined in a memorandum of the Administrative Board of the Courts seeking public comment on a proposed amendment to Commercial Division Rule 6. The proposed amendment would expressly grant Commercial Division judges the discretion to require parties to use hyperlinking. Hyperlinks are an electronic functionality that, when built into a memorandum of law or other document, allows the reader to click on to a cited authority and gain immediate access to that authority. The convenience and efficiency of hyperlinking is hard to dispute. A hyperlinked cite to a reported decision, for example, allows the court to access the case itself with a click of the mouse rather than have to access it independently either through a service such as Westlaw or by hitting the library stacks.
The amendment reflects a cautious step toward the adoption of this technology in Commercial Division filings. It would limit the use of hyperlinking to reference (1) other portions of the filed document; (2) other documents electronically filed with the court; (3) government websites; and (4) statutes, rules, regulations and court decisions.
Under the proposal, Rule 6 would be amended to provide:
(b) The Court may, by individual part rule or by a case by case directive, require the parties to electronically file documents with hyperlinks, an electronic functionality permitting the reader, by clicking on the name of a cited authority, to be immediately connected or “linked” to a copy of the authority. A hyperlinked document may contain hyperlinks only to: (1) other portions of the same document; (ii) other documents filed in the NYSECF system; (iii) a government website (xxx.gov) location on the Internet, which website contains a source document for a citation or an official record; and (iv) statutes, rules, regulations and court decisions. As a hyperlink is not considered part of the evidentiary record, to be considered as part of the evidentiary record, the underlying hyperlinked documents must also be separately filed. Hyperlinks may not be used to refer to sealed or restricted documents. Hyperlinks to cited authority may not replace standard citation format. Appropriate references/citations to authority/record in accordance with applicable rules are required in addition to the hyperlink. Hyperlinks to testimony must be to a transcript. A motion must be filed and granted seeking permission to hyperlink to an audio or video file before such links may be included in the pleadings. The Court is not responsible for the functionality of the hyperlinks.
The Commercial Division Advisory Council proposed the amendment last summer. In its memorandum in support of the proposed rule, the Advisory Council stated that the “convenience and efficiency” of the technology is “obvious.” It added, “the time and energy needed to find a physical copy of the target section, reference or document is reduced to the click of a mouse.”
The Advisory Council observed that optional hyperlinking already is provided for in the rules of the First Circuit, Second Circuit, Third Circuit and Fourth Circuit, as well as a number of District Courts. The United States Supreme Court itself used a hyperlink in its decision in Scott v. Harris, 550 U.S. 372 (2007), the Advisory Council noted. In releasing the proposed rule change for public comment, the Administrative Board stated that hyperlinking “will bring a convenience and efficiency appropriate to maintain New York’s preeminence in commercial practice.”
Rule 6 was amended last year to require that each electronically filed memorandum of law and, where appropriate, affidavit and affirmation, include bookmarks providing a listing of the document’s contents in order to facilitate the reader’s navigation of the submission. At that time, the Advisory Committee had also considered proposing the use of hyperlinks. It elected not to propose that change, however, concluding that it was premature to do so. The Advisory Council reasoned at the time that although it obviously would be helpful, hyperlinking can be “time-consuming and expensive for litigants[.]” It proposed moving forward with the bookmark requirement while the hyperlink requirement remained under review. The amendment to Rule 6 proposed last week is the result of that continued review.
The Administrative Board’s memorandum requesting public comment on the proposed amendment is hyperlinked here.
Comments on the proposed rule should be emailed to email@example.com or forwarded to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004. Comments must be received by no later than December 5, 2016.
For more information on this advisory, please contact:
William S. Gyves