DISCOVERY-RELATED MOTION PRACTICE - Amended December 1, 2017

(a)       Attorney's Affirmation. No discovery-related motion under Bankruptcy Rules 7026 through 7037 may be heard unless counsel for the moving party files with the Court, at or prior to the hearing, an affirmation certifying that such counsel has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the issues raised by the motion without the intervention of the Court and that counsel have been unable to reach an agreement. If any of the issues raised by motion have been resolved by agreement, the affirmation shall specify the issues so resolved and the issues remaining unresolved.

(b)       Request for Informal Conference. No discovery-related motion under Bankruptcy Rules 7026 through 7037 shall be heard unless counsel for the moving party first requests an informal conference with the Court and either the request has been denied or the discovery dispute has not been resolved as a consequence of the conference.

Comment

This rule is derived from Former Local Bankruptcy Rule 13.   Subdivision (a) of this rule is an adaptation of Civil Rule 3(f) of the Former District Rules. Subdivision (b) of this rule is an adaptation of Civil Rule 37.2 of the Local District Rules.

Subparagraph (a) of this rule was amended in 2017 to change the requirement that counsel submit an affidavit certifying counsel has conferred with opposing counsel in good faith.  Instead, counsel may now submit an affirmation.  Given New York’s Rules of Professional Conduct, Rule 3.3(a)(1), which prohibits an attorney from making a false statement of fact or law to a tribunal, an attorney affidavit does not provide any greater assurances that counsel conferred in good faith than an affirmation does.  This breaks with Former Local Bankruptcy Rule 13.