ALI-ABA Topical Courses Electronic Discovery Update: New York State Case Law and Developments June 14, 2011 Telephone Seminar/Audio Webcast

Transcription

1 ALI-ABA Topical Courses Electronic Discovery Update: New York State Case Law and Developments June 14, 2011 Telephone Seminar/Audio Webcast PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS 1. Electronic Discovery Update: New York State Case Law and Developments Discussion Outline 2. Electronic Discovery Case Compendium By Mark A. Berman, Anne D. Taback, James G. Ryan and Cynthia Augello 3. Electronic Discovery in the New York State Courts A Report to the Chief Judge and Chief Administrative Judge By The New York State Unified Court System February New York Electronic Discovery Relevant Rules and Statutes Supporting Articles (Reference Material) By Mark A. Berman Page ix xi xiii vii

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3 Program Schedule June 14, 2011 Program Schedule Eastern Central Mountain Pacific & AZ Alaska Hawaii Program Begins 1:30 p.m. 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 7:30 a.m. Adjournment 3:00 p.m. 2:00 p.m. 1:00 p.m. 12:00 p.m. 11:00 a.m. 9:00 a.m. Program: All Times Eastern 1:30 p.m. Faculty discussion begins ~ Q&A session 3:00 p.m. Program Ends. Scope, Purpose: Federal case law on e-discovery has developed rapidly since the 2006 amendments to the Federal Rules of Civil Procedure. Has New York State e-discovery law kept pace? Learn how state substantive and procedural law differs from federal practice and how you can keep a lid on e- discovery costs in New York State Courts. Topics to be covered include: Preservation obligations and litigation hold procedures in New York State Courts. What do the Uniform Civil Rules, and the Commercial Division Rules have to say about the meet-and-confer requirement, the Preliminary Conference, and attorney competence regarding electronically stored information? Who bears the cost of electronic discovery in New York State Courts? Practice tips on how you can limit the scope or control costs associated with electronic discovery in New York State Courts. Admissibility of electronically stored information in New York State Courts. What e-discovery conduct may result in sanctions from New York State Courts? Total 60-minute hours of instruction: 1.5; Total 50-minute hours 1.8. Suggested Prerequisite: Some familiarity with e-discovery rules and procedures. ix

4 Educational Objectives: Understanding of what s happening in New York e-discovery practice. Level of Instruction: Intermediate NOTE: Nothing in this program, the program materials, or communications stemming from the program (including questions and answers) should be considered as the rendering of legal advice. Non-lawyers should seek the advice of a licensed attorney in all legal matters. Registrants/readers should assure themselves that these presentations/materials/communications are still current and applicable at the time they are delivered or read. Neither ALI- ABA nor the speakers/authors can warrant that these presentations/ materials/communications will continue to be accurate, nor do they warrant them to be completely free of errors when delivered/published. Registrants/readers should verify statements before relying on them. These presentations/materials/communications reflect the viewpoints of their speakers/authors and do not necessarily express the opinions of ALI-ABA Continuing Professional Education or its sponsors. The members of this program's faculty are contributing their services to further the continuing legal education of their fellow members of the Bar. x

5 ALI-ABA Topical Courses Electronic Discovery Update: New York State Case Law and Developments Tuesday, June 14, 201 Telephone Seminar/Audio Webcast PLANNING CHAIR Maura R. Grossman Wachtell, Lipton, Rosen & Katz 51 West 52nd Street, 31st Floor New York, New York FACULTY Mark A. Berman Ganfer & Shore, LLP 360 Lexington Avenue 14th Floor New York NY James G. Ryan Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, New York Alan M. Winchester Harris Beach PLLC Attorneys at Law 100 Wall Street New York, NY ALI-ABA Program Producer: Leslie Lynn Myers xi

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7 FACULTY BIOGRAPHIES FACULTY CHAIR Maura R. Grossman Counsel, Wachtell, Lipton, Rosen & Katz Maura R. Grossman joined Wachtell, Lipton, Rosen & Katz as an associate in the Litigation Department in 1999, and was appointed as Counsel in Ms. Grossman has represented Fortune 100 companies and major financial services institutions in corporate and securities litigation, including civil actions and white collar criminal and regulatory investigations. Her practice presently focuses on advising lawyers and clients on legal, technical, and strategic issues involving electronic discovery and information management, both domestically and abroad, as well as on matters of legal ethics. Ms. Grossman has been appointed by Chief Administrative Judge Ann Pfau to serve as cochair of the E-Discovery Working Group advising the New York State Unified Court System, and by District Judge Shira A. Scheindlin to serve as a member of the Discovery Management and E-Discovery Issues Subcommittee of the Attorney Advisory Group to the Judicial Improvements Committee of the United States District Court for the Southern District of New York. She also is involved in other initiatives to provide training on e- discovery to federal and state court judges, and court-appointed special masters and mediators. Since 2010, Ms. Grossman has served as a coordinator of the Legal Track of the National Institute of Standards and Technology s Text Retrieval Conference ("TREC"), a joint government/industry/academic research project studying the application of automated information retrieval technologies to e-discovery, and as an adjunct professor at both the Rutgers School of Law - Newark and Pace Law School, where she teaches courses on e- discovery. Ms. Grossman speaks and writes frequently on e-discovery and legal ethics. She is a member of The Sedona Conference Working Groups on Best Practices for Electronic Document Retention and Production ("WG1"), and on International Electronic Information Management, Discovery, and Disclosure ("WG6"). She assisted in editing The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (May 2009). Ms. Grossman also serves on the Advisory Boards of BNA s Digital Discovery & e-evidence Report, as well as the Georgetown University Law Center s Advanced E-Discovery Institute. Ms. Grossman graduated with an A.B., magna cum laude, from Brown University. She received an M.A. and Ph.D. in Clinical/School Psychology from Adelphi University, and a J.D., magna cum laude, Order of the Coif, from the Georgetown University Law Center. While at Georgetown, Ms. Grossman served as Executive Notes and Comments Editor of the Georgetown Law Journal. Ms. Grossman is a member of the Association of the Bar of the City of New York, and has served on its Committee on Professional and Judicial Ethics; a member of the New York State Bar Association, where she presently serves on the E-Discovery Committee; and also a member of the American Bar Association. xiii

8 FACULTY Mark A. Berman Partner, Ganfer & Shore, LLP Mark A. Berman is a partner in the Litigation Practice of Ganfer & Shore, LLP. He is a seasoned litigator whose practice focuses on representing corporations and individuals in complex commercial civil litigation with an emphasis on real estate and securities matters. Prior to joining Ganfer & Shore, he was an associate in the litigation department at Skadden, Arps, Slate, Meagher & Flom LLP and clerked for United States Magistrate Judge Michael L. Orenstein for the Eastern District of New York. Mr. Berman counsels clients in a variety of litigation matters on both the plaintiff and defendant s side, including having represented a Fortune 500 company in a malicious prosecution case; a concierge company in an antitrust dispute and in a class action defense; real estate developers in connection with demolition of buildings, new construction and air rights disputes; plaintiffs and defendants in Rule 105-b disputes under the securities laws; condominiums and cooperatives relating to construction defects and shareholder disputes; companies on indemnification and contribution claims; sponsors in connection with disputes with cooperative board of directors; an assignee for the benefit of creditors; a major New York City hotel in connection with breach of its lease; high net-worth individuals relating to disputes with their business partners, brokers, and brokerage firms; and individuals and companies in connection with wrongful termination of employment and consulting agreements. He has been recognized as a "New York Super Lawyer for Mr. Berman has written and spoken on electronic discovery issues before the American Bar Association, the New York State Bar Association and the New York State Judicial Institute. He has been appointed by Chief Administrative Judge Ann Pfau as a member of New York State E-Discovery Working Group advising the New York State Unified Court System. Since 2005, Mr. Berman has had a column in The New York Law Journal addressing electronic discovery under New York State law. He is also the Secretary of the E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association. Mr. Berman is a 1986 graduate of Columbia College and a 1990 magna cum laude graduate of Benjamin N. Cardozo School of Law, where he was a member of the Moot Court Board and was awarded the Order of the Barrister. Mr. Berman is a member of the Litigation Section of the American Bar Association, Association of the Bar of the City of New York, the Federal Bar Council Second Circuit Courts Committee, the Commercial Division Law Reporter Committee of the New York State Bar Association and the Professional and Judicial Ethics Committee of the Association of the Bar of the City of New York. Mark lives in Manhattan with his wife and two sons. xiv

9 James G. Ryan Partner, Cullen and Dykman LLP Jim Ryan is a partner with Cullen and Dykman LLP. He is the head of Cullen and Dykman's commercial litigation department and is the chair of the firm's employment litigation practice. He regularly represents the firm's clients in cases involving discrimination claims, post employment covenants, breach of contract, breach of fiduciary duty, trade secrets, whistleblowers, proprietary information, unfair business practices, covenants not to compete, hiring, promotion, termination, discipline, reductions in force, and sexual harassment. His caseload also includes matters involving the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, Title VII, HIPPA, Sarbanes-Oxley, ERISA, the New York State Human Rights Law, and the New York State Labor Law. Jim appears on behalf of the firm's clients in federal and state courts, before federal, state and local administrative agencies, and in mediation and arbitration proceedings relating to all of the aforementioned areas. He offers advice and training, including seminars and bulletins, on avoiding discrimination and other employment claims. Jim also contributes articles to and comments for various publications concerning employment matters. In 2008, he founded the firm's E-Discovery Practice Group which consists of two partners, four associates and three paralegals. The E-Discovery Group provides cost effective, expeditious and practical solutions to even the most challenging issues involving electronically stored information so that a client can focus its resources on its business and operations. The E-Discovery Group also develops or reviews document retention policies to ensure compliance with the litigation hold process, e-discovery obligations and statutory/regulatory requirements. As a result of his lectures on e-discovery, in September, 2010, Jim was appointed to the New York State Unified Court System E-Discovery Working Group and to its education subcommittee to develop educational materials, including courses and bench book, on e-discovery for the New York State judiciary and judicial staff. Jim grew up in Massachusetts, graduated from Fordham University School of Law in 1985 and has been a litigator with the firm since shortly after his graduation from Fordham. He became a member of the firm in Jim is admitted to practice before the State Courts of New York, Massachusetts and Main, and is also admitted in the Eastern, Southern and Northern Districts of New York as well as the Second Circuit. He is a trained mediator for the United States District Court for the Eastern District. He is on the Council of Overseers for the Tilles Center for the Performing Arts, the Transportation Committee of the Long Island Association and a board member and coach of the Rockville Centre Soccer Club. He is regularly approached by the media on cases of local and national interest to provide expert analysis. His commentary has appeared in Newsday, The Daily News and Sport Illustrated (online edition) as well as on radio and television. xv

10 Alan M. Winchester Partner, Harris Beach PLLC Mr. Winchester is a member of the firm and leader of the e-info sm Electronic Information Counseling and Management Team, which provides comprehensive document management services for both transactional and litigation scenarios. He also practices within the Medical and Life Sciences Industry Team and in the Mass Torts and Industry-Wide Litigation Practice Group. As electronic discovery counsel, Mr. Winchester is experienced in all phases of information management relating to the development of document management strategies and policies, compliance with regulatory agencies, e-discovery, including the preservation, collection and production of documents, development of search criteria, review of documents for responsiveness and privilege, sampling of electronic documents for pre-litigation assessments, as well as the development of retention and disaster plans. Present and recent assignments include: Discovery counsel for a major pharmaceutical drug subject to recall due to concerns about the manufacturing process. Discovery counsel to defendants in complex federal court matters in the implementation of litigation holds and good faith compliance with obligations for disclosure of Electronically Stored Information (ESI) under the revised Federal Rules. Document counsel to an entity involved in a significant Department of Justice investigation. Regulatory and compliance counsel to national health care insurer seeking to develop document retention plans that incorporate Electronically Stored Information (ESI). Regulatory and compliance counsel to quasi-governmental agencies seeking counseling on record retention strategies for ESI. Risk assessment counsel to multiple international pharmaceutical companies seeking prelaunch evaluations of their products. In the tort arena, Mr. Winchester focuses his practice primarily on litigation involving technology and pharmaceutical products. He has defended manufacturers of chemical or pharmaceutical products in products liability claims brought as class actions, multi-district litigation and statewide consolidations or as individual suits involving cancer, cardiac and pulmonary defects, birth defects and other systemic injuries. He has also acted as national counsel, local counsel, and science counsel for numerous companies. xvi