I Winning Cases in ederal Court - New York County Lawyers ... Cases in Federal Court Day Two … ·...

3 TransiTional and non-TransiTional MClE CrEdiTs: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 2 Skills; 1 Ethics.

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

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Winning Cases in Federal Court

Prepared in connection with a Continuing legal Education course presented at new York County lawyers’ association, 14 Vesey street, new York, nY

scheduled for June 14, 2011.

P r o g r A m C o - C h A I r s :

Hon. Victor Marrero, United States District Court, Southern District of New YorkJoel M. silverstein, Stern & Kilcullen, LLC (Moderator)

F A C u L t Y :

Barbara Moses, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C.arthur H. aufses iii, Kramer Levin Naftalis & Frankel LLP

Charles Cohen, Hughes Hubbard & Reedsusan Buckley, Cahill Gordon & Reindel LLP

Thomas Marino, Dunnington Bartholow & Miller LLP

Information Regarding CLE Credits and Certification Winning Cases in Federal Court

Day Two June 14, 2011, 6:00PM to 9:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Winning Cases in Federal Court

Day Two

Table of Contents Section Overview of Discovery Methods and Motions 1 Non Party Discovery in Federal Litigation 2 Electronic Discovery 3 Taking and Defending Depositions 4 Admission of Scientific Evidence in Federal Courts after Daubert

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Winning Cases in Federal Court June 14, 2011

6:00 PM – 9:00 PM

AGENDA Program Chairs and Moderators: Hon. Victor Marrero, S.D.N.Y Joel Silverstein, Stern & Kilcullen, LLC Faculty: Arthur H. Aufses, III, Kramer Levin Naftalis & Frankel

LLP Susan Buckley, Cahill, Gordon & Reindel LLP Charles Cohen, Hughes Hubbard & Reed Thomas Marino, Dunnington Bartholow & Miller LLP Barbara Moses, Morvillo, Abramowitz, Grand, Iason,

Anello & Bohrer, P.C. 6:00 p.m. Introductions, Joel Silverstein

6:05 p.m. Overview of Discovery Methods and Motions, Barbara Moses

6:45 p.m. Non-Party Discovery, Arthur, H. Aufses III

7:10 p.m. Electronic Discovery, Charles Cohen

7:45 p.m. Break

7:55 p.m. Taking and Defending Depositions, Susan Buckley

8:25 p.m. Admission of Scientific Evidence in Federal Courts after Daubert, Thomas Marino

9:00 p.m. Distribution of Certificates

Overview of Discovery Methods and Motions 1

Overview of Discovery Methods and Motions

June 14, 2011 Barbara Moses Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C. 565 Fifth Avenue New York, New York 10017 (212) 856-9600 www.maglaw.com

Our discovery system is broken. Fewer than half of the respondents thought that our discovery system works well and 71 percent thought that discovery is used as a tool to force settlement.

Am. Coll. of Trial Lawyers and Inst. for the Adv. of the Am. Legal Sys., Final Report on the American College of Trial Lawyers Task Force on Discovery 9 (rev. Apr. 15, 2009). Defendants can assert unfounded defenses or use the discovery process to wear down plaintiffs so that meritorious claims are never tried or settled on a reasonable basis.

Hon. John G. Koetl, Progress in the Spirit of Rule 1, 60 Duke L.J. 537, 538 (2010).

[P]laintiffs today often use discovery in an abusive and vexatious manner to coerce defendants into accepting quick settlements.

John H. Beisner, Discovering a Better Way: the Need for Effective Civil Litigation Reform, 60 Duke L. J. 546 (2010).

I. FINDING DISCOVERY RULES

A. Fed. R. Civ. P. 11, 26-37, 45.

E.g., Fed. R. Civ. P. 37 (a)(1) (party may move, on notice to all parties, for order compelling discovery; motion must include certification re good faith conference).

B. Local Civil Rules (Southern and Eastern Districts) 26.1-37.3.

E.g., S.D.N.Y. Local Rule 37.2 (no discovery motion shall be heard unless the moving party has first requested “an informal conference with the court” and either the request has been denied or the conference failed to resolve the dispute).

C. Individual Practices of Assigned Judge/Magistrate Judge.

E.g., Marrero Ind. Practices, Part III (discovery disputes to be submitted to court via joint letter; court may rule based upon written submission or may refer to magistrate judge for further proceedings).

II. GOALS OF DISCOVERY

A. Proper Goals:

1. Understand opponent’s best case;

2. Avoid surprise at trial (or elsewhere);

3. Explore weaknesses in opponent’s case;

4. Obtain helpful evidence to use at trial, on summary judgment or to settle;

5. Proceed as efficiently and inexpensively as possible.

B. Improper Goals:

1. Harass/annoy opponent, delay proceedings, run up costs. Fed. R. Civ. P. 11(b)(1).

2. Determine whether you have a claim or can plead additional claims. E.g., Stoner v. Walsh, 772 F. Supp. 790, 800 (S.D.N.Y. 1991) (Mukasey, J.) (“[t]he purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a claim exists”).

III. PRINCIPLES

A. Plan discovery in advance. But be prepared to modify plan as developments warrant.

B. Focus your discovery. Every demand should have a purpose. You should be able to articulate that purpose.

C. Recognize that some facts are more important than others. The most important facts may be the hardest to obtain.

D. Be dogged, to the extent your budget allows; make sure you obtain all the documents and information you need and are entitled to obtain.

E. Recognize that “objective” evidence is the most credible:

1. Documents, including electronic documents.

2. Non-party witnesses.

3. Admissions from party witnesses.

IV. LEGAL ANALYSIS – SUBSTANTIVE AND PROCEDURAL

A. Effective discovery calls for early legal analysis and factual development.

B. Be rigorous and precise in identifying the essential elements of all claims and defenses.

1. Research applicable statutes.

2. Review relevant case law.

3. Consider referring to pattern jury instructions.

C. Consider possible end-games. For example:

1. Can you make a motion for summary judgment? On what issues? What do you need for that motion and how can you use discovery to get it?

2. Can you obtain an early settlement by exposing “bad” facts in discovery?

3. Will trial depend on credibility of opposing witnesses?

V. FINDING FACTS AND EXPLORING ALTERNATIVES TO FORMAL DISCOVERY

A. Relevant facts are everywhere. You don’t necessarily need formal discovery to obtain relevant, admissible evidence.

B. Informal discovery is faster and cheaper, does not preserve harmful evidence – and you don’t have to tell the other side about it (usually).

C. Elements of Informal Discovery

1. Interview your clients. Then do it again. Ask them for their relevant documents. Then do it again.

2. Visit the scene(s).

3. Explore non-party sources of information, private and public, and seek them out. E.g., non-party witnesses, public records and archives.

4. Former employees of corporate parties can be very effective. If confident there is no bar to interviewing them, seek them out.

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5. Use the internet and computerized databases, including social networking sites. Caveat: no trick “friend” requests. See, e.g., NY Comm. on Prof'l Ethics, Op. 843 (Sept. 10, 2010) (lawyer may access profile or other information posted on social network sites by parties or witnesses so long as information is generally available to all members of network); N.Y.C. Bar Formal Op. 2010-2 (Sept. 2010) (lawyer who is otherwise permitted to communicate directly with unrepresented party or witness may do so via Facebook or other social networking sites, including making “friend” requests for access to otherwise nonpublic information, but may not use deceptive practices such as false names, manufactured personas, etc., to do so).

6. Consider using private investigators (subject to same ethical rules).

VI. PRESERVING EVIDENCE

A. Helpful Witnesses

1. Witnesses come and go. Make sure important witnesses will be available at trial. If there is doubt, take their depositions to preserve their testimony.

2. Even if the witnesses will be available, be sure to memorialize crucial testimony in some form. Caveat: witness statements are generally discoverable. E.g., Kullman v. New York, 2009 WL 1562840 (N.D.N.Y. 2009) (witness affidavits not protected from discovery by work product doctrine); Murphy v. Kmart Corp., 259 F.R.D. 421 (D.S.D. 2009) (same).

B. All Relevant Evidence

1. Avoid even the suggestion of spoliation.

2. Distribute or have the client distribute appropriate “document hold” instructions both broad and detailed enough to cover, e.g., client’s email and other electronic document retention systems. But see Fed. R. Civ. P. 37(e) (absent “exceptional circumstances,” party cannot be sanctioned for failing to provide electronically stored information lost through “the routine, good faith operation of an electronic information system”).

VII. FORMAL DISCOVERY

A. Scope.

1. Fed. R. Civ. P. 26(b)(1): “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

2. Thus, you may seek to discover, e.g., hearsay and speculation.

3. But not, generally speaking, testimony, documents or other evidence that is privileged or protected by the work-product doctrine. See Fed. R. Civ. P. 26(b)(3).

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4. Facts known and opinions held by expert “consultants” (as opposed to testifying experts) are ordinarily protected from discovery as work product. See Fed. R. Civ. P. 26(b)(4) (D).

B. Narrowing Scope. Fed. R. Civ. P. 26(b)(2)(C) permits the court to narrow the scope of otherwise-permissible discovery:

1. if the discovery sought is unreasonably cumulative or duplicative, or if it is obtainable from some other source that is more convenient, less burdensome or less expensive;

2. if the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

3. if the burden or expense of the proposed discovery outweighs its likely benefits, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.

C. Initial (“Automatic”) Disclosures.

1. Contents of initial disclosure – Fed. R. Civ. P. 26(a)(1)(A):

a. Witnesses – “the name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”

b. Documents – “a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may yse to support its claims or defenses, unless the use would be solely for impeachment.”

c. Damages Computation – “a computation of any category of damages claimed by the disclosing party – who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.”

d. Insurance Information – “for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

(1) Note: Rule 26(a)(1)(A)(iv) does not call for automatic disclosure of corporate or other non-insurance company indemnity agreements or agreements to advance defense costs.

2. Exceptions to initial disclosure rule: actions for review of an administrative record; forfeiture actions in rem; petitions for habeas corpus or other proceeding to challenge a criminal conviction or sentence; actions brought without counsel by a person in custody of the United States, a state or a state subdivision;

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actions to enforce or quash an administrative summons or subpoena; actions by the United States to recover benefit payments; actions by the United States to collect on a student loan guaranteed by the United States; proceedings ancillary to proceedings in other courts; actions to enforce an arbitration award. Fed. R. Civ. P. 26(a)(1)(B).

a. Note: parties may also stipulate to waive, narrow or otherwise modify the scope of initial disclosures. See Fed. R. Civ. P. 26(a)(1)(A).

3. Timing; Discovery Conference and Report.

a. Timing of initial disclosures is calculated by reference to the discovery conference among counsel mandated by Rule 26(f). The Rule 26(f) conference, in turn, must held “as soon as practicable” and in no event later than 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). Fed. R. Civ. P. 26(f)(1).

(1) Don’t wait to get a Rule 16 notice from the Court before scheduling a discovery conference. And don’t go to the discovery conference without a proposed discovery plan in mind. A lawyer who arrives with a typed draft, in conformity with the judge’s individual practices, is far more likely to win agreement to an advantageous schedule than a lawyer who begins thinking about the case during the conference.

(2) The sooner you conduct the Rule 26(f) conference, the sooner you can send out non-automatic discovery requests. See Fed. R. Civ. P. 26(d)(1).

b. Initial disclosures must be made at or within 14 days after the Rule 26(f) conference, unless a different time is set by stipulation or court order, or a party objects during the conference and states its objection in its proposed discovery plan – which is also due to the Court 14 days after the Rule 26(f) conference. If there is an objection, the Court will rule on it and set a time for required disclosures. Fed. R. Civ. P. 26(a)(1)(C).

c. A party first served or otherwise joined after the Rule 26(f) conference must make disclosures within 30 days of being served or joined, unless a different time is set by stipulation or court order. Fed. R. Civ. P. 26(a)(1)(D).

d. A party is not excused from making its initial disclosures because it has not completed its investigation or because another party has not made its disclosures. Fed. R. Civ. P. 26(a)(1)(E).

e. Parties must also submit a written discovery report within 14 days after the discovery conference. The report must the parties’ views and proposals not only regarding initial disclosures but also regarding discovery throughout the case. Fed. R. Civ. P. 26(f)(3).

(1) Note: Check individual practices and forms of order to see if your judge expects/requires you to cover additional issues in the discovery report.

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D. Signature Requirement; Sanctions.

1. Every discovery request or response, including initial disclosures, “must be signed by at least one attorney of record in the attorney’s own name – or by the party personally, if unrepresented. Signature certifies that “to the best of the [signing] person’s knowledge, information and belief, formed after a reasonable inquiry . . . [each disclosure] “is complete and correct as of the time it is made.” Fed R. Civ. P. 26(g)(1)(A).

2. Signature on all discovery documents (requests, objections, responses) certifies that they are consistent with Rules; warranted by existing law or nonfrivolous argument for extending, modifying or reversing existing law; not interposed to harass or for other improper purposes; not unreasonable or unduly burdensome. Fed. R. Civ. P. 26(g)(1)(B).

3. Similarity to Rule 11 is not accidental. Sanctions for violations must be imposed, on motion by a party or on the court’s own motion, against the signer, the party on whose behalf the signer was acting, or both. Fed. R. Civ. P. 26(g)(3).

E. Duty to Supplement.

1. With respect to all discovery disclosures, including initial disclosures, disclosing party must supplement or correct “in a timely manner” if the party learns “that in some material respect the disclosure or response is incomplete or incorrect,” unless the additional or corrective information has “otherwise been made known to all parties.” Fed. R. Civ. P. 26(e).

F. Interrogatories – Fed. R. Civ. P. 33.

1. Tactical considerations.

a. Pros: Interrogatories can be prepared quickly and relatively inexpensively. They can be used to identify and locate witnesses and documents; establish discrete facts, such as names, dates and numbers; obtain your adversary’s computation of damages; and identify and explore contentions.

b. Cons:

(1) Interrogatories can only be served on parties.

(2) Responses can be delayed by objections and evasive answers.

(3) Interrogatories generally are not useful for eliciting details of events.

(4) Fed. R. Civ. P. 33(a)(1) limits the number of interrogatories served by any party to 25 (“including all discrete subparts”), absent leave of Court; local rules may further limit scope and timing of interrogatories. E.g., Southern District Local Rule 33.3 (initial interrogatories limited to those seeking names of witnesses, computation of damages and location of documents; contention interrogatories may be served “[a]t the conclusion of other discovery”).

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2. Drafting.

a. Southern/Eastern District Local Rule 26.3 contains uniform definitions and rules of construction for use in all discovery requests. “No discovery request shall use broader definitions or rules of construction . . . “

b. Remember: the 25-question limit includes “all discrete subparts.” Don’t cheat – much.

c. What goes around comes around.

3. Timing.

a. Like other discovery requests, interrogatories may not be served before the Rule 26(f) conference, unless the case is exempt from initial disclosures, the parties stipulate otherwise, or the Court so orders. Fed. R. Civ. P. 26(d)(1).

b. Party served with interrogatories has 30 days to respond unless extended by Court order or stipulation. Fed. R. Civ. P. 33(b)(2).

4. Responding

a. Interrogatories must be answered “by the party to whom they are directed.” If the party is a corporation or other entity, “by any officer or agent, who must furnish the information available to the party.” Fed. R. Civ. P. 33(b)(1).

b. “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).

c. “The person who makes the answers must sign them, and the attorney who objects must sign any objections.” Fed. R. Civ. P. 33(b)(5). Objections not stated with specificity are waived. Fed. R. Civ. P. 33(b)(4)

d. Fed. R. Civ. P. 33(d) and Southern/Eastern District Local Rule 33.1 govern the option to produce business records in response to interrogatories:

(1) Use when the answer to an interrogatory may be derived or ascertained from business records and the burden of deriving or ascertaining the answer is substantially the same for both parties.

(2) It is a sufficient answer to specify the records from which the answer may be ascertained; however, specification shall be in sufficient detail to permit the interrogating party to locate and identify the records.

(3) Producing party must make available any computerized information or summaries thereof.

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(4) Producing party must also provide any relevant compilations, abstracts or summaries, unless these materials are privileged or immune from discovery.

(5) Documents shall be made available for inspection within 14 days after service of the answers to interrogatories.

G. Document Requests – Fed. R. Civ. P. 34.


a. Document requests are essential in every case, but are particularly critical in commercial cases.

b. Document requests can and should be sent to parties and to nonparties (via Rule 45) likely to possess relevant documents.

c. Serve document requests early and follow up as often as necessary to ensure production of all relevant documents. There is no preset limit on document requests.

d. Be wary of your opponent’s objections and attempts to negotiate the extent of production. What is it that your opponent is hoping to avoid?

e. Pay attention to what documents don’t seem to exist. Consider making a formal demand, at (or prior to) the start of the case, that the other side preserve all relevant documents. Ask for record retention policies and documents relating to disposal or destruction of records. Question witnesses concerning the whereabouts of documents you expected to see but have not yet been produced. Follow up vigorously.

f. Pay attention to documents withheld on privilege grounds. Don’t let your opponent delay production of its privilege log (see Fed. R. Civ. P. 26(b)(5)) until it is too late to challenge privilege designations or make use of documents produced after a successful challenge – unless you have reasons for wanting to delay your own log.

g. When you get documents, read them and organize them promptly. Then read them again.

2. Mechanics.

a. Request to a party – must “describe with reasonable particularity each item or category of items to be inspected,” specify a reasonable time, place and manner for inspection, and “may specify the form or forms in which electronically stored information is to be produced.” Fed. R. Civ. P. 34(b)(1).

b. Response – shall be served within 30 days after the service of the request. Fed. R. Civ. P. 34(b)(2)(A). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B).

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c. Responding party must “produce documents are they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i).

d. Electronic documents may be produced in any form in which they are usually maintained, unless the request specifics a particular form. Electronic documents need not be produced in more than one form. Fed. R. Civ. P. 34(b)(2)(E)(ii) and (iii).

e. Document requests may be combined with deposition notice, but ordinarily should not be. See, e.g., Eastern District Local Rule 30.7: Party seeking production of documents in connection with a deposition “should schedule the deposition to allow for the production of documents in advance of the deposition”; if documents are so requested, but not produced in advance, party noticing deposition may adjourn it until after documents are produced.

3. Nonparty Document Requests.

a. May be served via subpoena pursuant to Fed. R. Civ. P. 34(c) and 45.

b. Pay attention to territorial requirements of Rule 45.

H. Inspections of Property and/or Tangible Things – Fed. R. Civ. P. 34(a)(2).

1. Tactical Considerations.

a. These are useful in a wide range of cases – environmental, product warranty or liability, patent, landlord-tenant, nuisance, personal injury.

b. If a property inspection or inspection of device or other tangible thing will be useful, it probably will make sense to retain an expert.

c. Coordinate the inspection with the retention of the expert.

d. Inspection requests may be sent to parties and nonparties alike.

2. Permitted purposes for property entry: ”so that the requesting party may inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it.” Fed. R. Civ. P. 34(a)(2).

3. Mechanics.

a. Request and response generally the same as for documents.

b. Rarely any privilege issue.

I. Physical and Mental Examinations – Fed. R. Civ. P. 35.


a. Examinations are in order whenever a party’s physical or mental condition is in controversy, not just in personal injury actions. For example, if a party has claimed emotional distress in an employment case, a mental examination may be in order. Fed. R. Civ. P. 35(a)(1).

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b. Examinations may also be obtained of persons in the custody or under the legal control of a party.

c. The party or person to be examined need not be the one to have placed his/her mental or physical condition in controversy.

d. Examinations are expensive and time-consuming, particularly in light of the noticed-motion requirement (see below).

2. Mechanics.

a. No Self-Help. Request for examination must be made “on motion for good cause” and on notice to all parties “and the person to be examined.” Resulting order must specify time, place, manner, conditions and scope of the examination and identify the “suitably licensed or certified examiner” to perform it. Fed. R. Civ. P. 35(a)(2).

b. Report Must be Furnished. The party requesting the examination is required, on request, to deliver to the party or person examined a copy of the written report of the examiner, “together with like reports of all earlier examinations of the same condition.” Fed. R. Civ. P. 35(b)(1). The examining party is then entitled, on request, to receive from the opposing party the report of any similar examination that the opposing party conducted – “earlier or later” – and will be held to have waived any privilege attaching to such examinations. Fed. R. Civ. P. 35(b)(3), (b)(4).

J. Depositions Upon Oral Questions – Fed. R. Civ. P. 30.


a. Pros: This is the only discovery device in which a witness (rather than a lawyer) must give an immediate response, and the examiner may follow up immediately with questions triggered by that response, as at trial. Moreover, although the witness’s lawyer may object to a question, he or she may not instruct the witness not to answer except “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [to terminate or limit the deposition] under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2). Thus, depositions can be an effective means of discovering less-obvious facts and obtaining and preserving unrehearsed admissions. They can also be an invaluable tool for judging a witness’s character and predicting his or her likely reaction to various cross-examination styles at trial. Depositions – particularly of an individual party or a high-level executive of a corporate party – can also force that party to confront the weaknesses in the case. Depositions may be taken of parties or non-parties (via Rule 45).

b. Cons: Depositions are expensive and time-consuming, tend to reveal your theories of the case, and (in the case of non-party witnesses) can preserve harmful testimony that might not otherwise be available to your opponent.

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2. Mechanics.

a. Party seeking deposition need only “give reasonable written notice to every other party,” stating the time and place of the deposition and the identity of the deponent, as well as the method to be used for recording the testimony (audio, audiovisual, stenographic). Other parties may then designate additional recording methods, at their own expense. Fed. R. Civ. P. 30(b)(1), 30(b)(3).

b. If a subpoena duces tecum is to be served on the deponent, “the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.” Fed. R. Civ. P. 30(b)(2).

(1) Note: Consider serving a non-party deponent with a subpoena even if he or she has agreed to appear without one.

c. Pursuant to Fed. R. Civ. P. 30(b)(6), the notice (and/or subpoena) may be addressed to a corporation or other entity, in which case it must “describe with reasonable particularity the matters for examination.” The entity must then designate “one or more officers, directors, or managing agents, or . . . other persons who consent to testify on its behalf” top provide the requested testimony.”

d. Absent leave of the Court or a stipulation among the parties, no more than 10 depositions may be taken “by the plaintiffs, or by the defendants, or by the third-party defendants.” Fed. R. Civ. P. 30(a)(2)(A)(i).

e. Absent leave of the Court of a stipulation among the parties, “a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1).

(1) Note: most practitioners exclude breaks from the 7-hour computation but include objections, unless inappropriately lengthy.

f. Fed. R. Civ. P. 26(b)(2) and 30(d)(2) permit the Court to extend the length of a deposition, and/or impose a sanction, if a person “impedes, delays or frustrates the fair examination of the deponent.”

(1) Note: The person on the wrong end of a sanctions motion could be the deponent.

g. Per Southern/Eastern District Rule 30.1, the court “may” require the examining party, before taking a deposition more than 100 miles from the courthouse, to “pay the expense (including a reasonable counsel fee) of the attendance of one attorney for each adversary party at rhe place where the deposition is to be taken.”

h. To cut down on travel costs, depositions may, pursuant to stipulation or court order, be taken by telephone or video conference. Fed. R. Civ. P. 30(b)(4). Per Eastern District Local Rule 30.3, motions for permission to take an adverse party’s deposition by telephone “will presumptively be granted.”

i. Per Eastern District Local Rule 30.6, “an attorney for a deponent shall not initiate a private conference with the deponent during the actual

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taking of a deposition except for the purpose of determining whether a privilege shall be asserted.” No comparable rule in the Southern District but conferences are fair game for cross-examination.

K. Depositions Upon Written Questions – Fed. R. Civ. P. 31.


a. Pros: A deposition upon written questions permits a party to obtain and preserve witness testimony (party or non-party) without incurring any travel expense.

b. Cons: No ability to follow up or conduct real cross-examination; cumbersome and lengthy procedure for service of direct, cross, re-direct and re-cross questions; no ability to surprise the witness or the other parties with novel or inventive questions; no ability to test effect of personal questioning techniques on witness; takes up one of your side’s ten allotted depositions.

c. Rarely useful except in connection with document custodians and/or to establish foundations for admissibility.

2. Mechanics.

a. Notice of deposition must include direct questions to be asked. Fed. R. Civ. P. 31(a)(3).

b. Opposing parties have 14 days to serve cross-questions, followed by re-direct questions 7 days later and re-cross questions 7 days after that. Fed. R. Civ. P. 31(a)(5).

c. Officer then takes and records the testimony and sends it to the noticing party. Fed. R. Civ. P. 31(b).

L. Requests for Admission – Fed. R. Civ. P. 36.


a. Pros: RFAs are not subject to the 25-question rule governing interrogatories; can be used broadly to obtain admissions regarding “fact, the application of law to fact, or opinions about either,” Fed. R. Civ. P. 36(a)(1)(A), as well as genuineness of documents, and when answered fairly, can significantly narrow issues and expedite the trial.

b. Cons: RFAs are rarely answered fairly, particularly if the stakes are high (e.g., questions concerning ultimate facts and legal conclusions) and the resulting motion practice can be expensive, time-consuming and ultimately frustrating.

c. Don’t count on admissions regarding ultimate facts or legal conclusions. RFAs are useful, though, for eliminating document admissibility issues and for establishing predicate facts that can save you time at trial.

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2. Mechanics.

a. RFAs may be served at any time once discovery has commenced. Each request to admit must be separately stated; requests to admit the genuineness of documents must be accompanied by a copy of the document. Fed. R. Civ. P. 36(a)(2).

b. If the party served with RFAs fails to answer or object within 30 days, the matter “is admitted.” Fed. R. Civ. P. 36(a)(3).

c. A party may not object “solely on the ground that the matter presents a genuine issue for trial.” Fed. R. Civ. P. 36(a)(5). If a matter is not admitted, “the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.” Fed.R. Civ. P. 36(a)(4).

d. A matter admitted in response to an RFA “is conclusively established” – unless the Court permits the admission to be withdrawn or amended. Fed. R. Civ. P. 36(b).

VIII. SEQUENCING

A. Conventional wisdom: Serve identification interrogatories first; then document requests, then depositions (working from peripheral to central witnesses), then contention interrogatories, and finally, requests for admissions.

B. Alternatives:

1. Skip or delay identification interrogatories, relying on automatic disclosures.

2. Use contention interrogatories and/or RFAs early, where permitted by local rule, to flesh out the opponent’s pleading and narrow the issues.

3. Take a key deposition early – even if document discovery is not complete – to obtain less-prepared, less-rehearsed testimony in response to questions the witness may not expect.

4. Use fact interrogatories after some or all depositions to “clean up” or clarify points raised but not answered by testimony.

5. Save 30(b)(6) deposition for late in the schedule, to clean up or pin down (as the case may be) testimony of individual witnesses.

C. Seizing (or ceding) deposition “priority”:

1. Conventional wisdom: Priority of depositions is important. But the Federal Rules do not provide any method for ensuring priority.

2. Historically, parties attempted to gain priority by being the first to serve notices, and/or by developing inventive reasons why this or that witness could not be deposed when first noticed. But the discovery conference and plan required by Rule 26(f) make it difficult to “get the drop” on opponents, and courts are increasingly vigilant about preventing deposition malingering. See also: what goes around comes around.

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3. If you cannot work out a reasonable deposition schedule with your adversary, expect the court to provide fairly rough justice – which in all likelihood will not include much consideration for your husband’s birthday, your college reunion, or your daughter’s third grade play.

D. Out-of-state and non-party depositions:

1. Recognize that they can take longer to obtain and that you may have less control over the process.

2. Start the process early, regardless of when you might otherwise want to obtain discovery from these witnesses.

IX. DISPUTES

A. Avoiding the Need for Judicial Intervention.

1. Preparation and knowledge of the rules.

2. General principle of reasonableness. See also: what goes around comes around.

B. Pre-motion Conference Requirements.

1. Fed. R. Civ. P. 26(c)(1) and 37(a)(1) require that, before any discovery motion is made, the moving party must confer or attempt to confer “in good faith” with the opposing party in an effort to resolve the dispute without court intervention.

i. Southern District Local Rule 37.2 also requires an “informal conference with the court” before a discovery motion is made. Where such conferences are held (see individual practices for exceptions), most discovery disputes are resolved short of a formal motion.

ii. Eastern District Local Rule 37.3(a) requires the parties to a discovery dispute to “notify the court . . . either by a telephone conference with all affected parties on the line or by letter not exceeding three pages in length outlining the nature of the dispute.” Responding letters, also limited to three pages, are due in four days.

2. Discovery disputes may also be raised and resolved at the initial or any followup pretrial conferences. See Fed. R. Civ. P. 16(b)(1), 16(c)(2)(F).

C. Use of Magistrate Judges.

1. Per Eastern District Local Rule 72.2, non-dispositive pretrial matters, including discovery disputes, are automatically referred to magistrate judge “assigned” at commencement of action, except for those actions set forth in Local Rule 16.1.

2. No corresponding rule in Southern District. Depending on case and on district judge, magistrate judge may or may not be designated at the commencement of and action and discovery disputes may or may not be referred.

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D. Disputes Arising during Depositions.

1. Eastern District Local Rules 37.3(b), 37.3(d): Mid-deposition disputes are resolved by telephone conference with magistrate judge, followed by letter-briefs if reconsideration is sought.

2. No corresponding rule in Southern District; practice varies with individual judges.

E. Other Types of Discovery Disputes.

1. Eastern District Local Rules 37.3(c), 37.3(d): Party seeking a court ruling has the option of convening a telephone conference with the court and all parties, or submitting a letter-brief (not to exceed three pages) outlining the dispute. The opposing party has three days to submit a responsive letter-brief, also limited to three pages. No other submissions are permitted without specific direction from the Court.

2. Southern District: Practice varies with individual judges. If matter cannot be resolved at informal conference pursuant to Southern District Local Rule 37.2, most will direct limited briefing on an expedited schedule.

F. Formal Motion Practice.

1. Motions for protective orders – Fed. R. Civ. P. 26(c).

a. A party “or any person from whom discovery is sought” may move for a protective order, either in the court where the action is pending or, where the dispute relates to a deposition, where the deposition will be taken.

b. The Court, for good cause shown, may issue any order appropriate “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

c. Relief may include, without limitation, an order:

(1) Forbidding the discovery;

(2) Specifying terms including time and place) for the discovery;

(3) Prescribing a discovery method other than the one selected by the party seeking discovery;

(4) Forbidding inquiry into certain matters or otherwise limiting the scope of the discovery;

(5) Designating the persons who may be present;

(6) Requiring that a deposition be sealed;

(7) Requiring that a trade secret or other confidential information not be revealed, or be revealed only in a specified way;

(8) Requiring that the parties simultaneously filed specified documents under seal.

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d. Comparable provisions govern motions to quash or modify a subpoena pursuant to Fed. R. Civ. P. 45(c)(3).

e. When must you make a protective order (as opposed to waiting for your opponent to make a motion to compel)?

(1) Generally speaking, if the discovery method in question has a provision for objecting in lieu of providing the requested discovery (e.g., document demands, interrogatories, subpoenas), you need not move for a protective order.

(2) You may nonetheless wish to be the moving party, either to secure your choice of court, where there is more than one option, or to frame the issue in the most favorable terms.

(3) If the method in question does not permit you to object in lieu of providing the requested discovery (e.g., deposition questions that do not seek privileged information or information excluded by prior court order), you should seek a protective order in advance, rather than risk sanctions in connection with your adversary’s motion to compel.

2. Motions to Compel – Fed. R. Civ. P. 37(a).

a. Motions to compel may be made by any party, on notice to all other parties “and all affected persons,” either in the court where the action is pending or, if the motion is directed to a nonparty, “where the discovery is or will be taken.” Fed. R. Civ. P. 37(a)(2).

b. Motions to compel may include motions to compel automatic disclosures, see Fed. R. Civ. P. 37(a)(3)(A), and motions to compel an answer (including instances where evasive or incomplete answers were given), designation, production or inspection. Fed. R. Civ. P. 37(a)(3)(B), (a)(4).

3. Sanctions and Payment of Expenses.

a. Award of sanctions or reasonable expenses to the prevailing party is, on paper, the norm in discovery disputes. See, e.g., Fed. R. Civ. P. 37(a)(3)(A) (sanctions), 37(a)(5) (payment of expenses in connection with motion to compel); 26(c)(3) (payment of expenses in connection with motion for protective order).

b. From the practitioner’s viewpoint, such awards, even when made, rarely compensate the moving party fully for the cost of obtaining relief and/or for the time lost in doing so.

c. Courts may – and sometimes do – apply the “ultimate sanction” of dismissal (against a plaintiff) or a default judgment (against a defendant) for egregious discovery abuses. E.g., Medina v. Gonzalez, 2010 WL 3744344, 21 (S.D.N.Y. Sept. 23, 2010) (Fox, M.J.) (report and recommendation prescribing entry of default judgment in favor of pro se § 1983 plaintiff after “a long history of failing to comply with the Court’s discovery orders” by defendant New York City Department of Corrections).

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4. Scheduling, Form of Papers under Local Rules.

a. Southern/Eastern District Local Rule 6.1: opposition to discovery motions to be served within seven days of service of moving papers; reply papers to be served within two days of service of opposition.

(1) Note: Local Rule 6.1 applies in the Southern District only if the matter is not resolved at the Rule 37.2 conference and if the judge or magistrate judge does not prescribe a different procedure. It applies in the Eastern District only if Local Rule 37.3(c) does not apply and if the judge or magistrate judge does not prescribe a different procedure.

b. Southern/Eastern District Local Rule 37.1: moving party to “specify and quote or set forth verbatim in the motion papers” each request and response to which the motion is addressed.

X. PLANNING FOR DEFENSE.

A. Aim is to eliminate surprise.

B. Put yourself in your opponent’s shoes.

C. Conduct informal discovery of your own witnesses.

D. View the other side’s discovery requests as an opportunity to gain insight into its theory of the case.

E. At the start of the case (or even earlier), make sure that your side preserves all documents. Keep reminding your clients about this. Search for all the same documents – before your opponent does.

F. Know your rights and exercise them.

G. Discovery is largely a negotiation. Seek to obtain something in return for everything that you give.

H. What goes around comes around.

Barbara Moses Barbara Moses handles complex business disputes in state and federal courts nationwide, in arbitration, and in administrative proceedings. She has extensive experience in securities fraud and shareholder rights litigation, securities regulatory proceedings, class and derivative actions, partnership disputes, and copyright, trademark and trade secrets litigation. She also handles attorney disciplinary matters and conducts internal corporate investigations. In addition to her work at the Firm, Ms. Moses teaches a full-year, first-year course at New York University Law School. From 2006 to 2008, she served as an Adjunct Professor of Law at Seton Hall University Law School. Barbara received an A.B. magna cum laude from Dartmouth College and a J.D. cum laude from Harvard Law School. After clerking for the Honorable Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court, and serving as a litigation partner at Orrick, Herrington & Sutcliffe for twelve years, she joined Morvillo Abramowitz as a principal in 2002. Barbara’ numerous articles on securities litigation and trade secret issues include: “They Were Shocked, Shocked: The ‘Discovery’ of Analyst Conflicts on Wall Street” (70 Brooklyn L. Rev. 98, Fall 2004); “Litigation Stemming From Hiring Decisions: The Defense Perspective” (New York Law Journal, October 28, 1999); “Measures to Prevent Trade Secret Theft” (New York Law Journal, November 24, 1997); and “Securities Litigation Reformed?” (Review of Securities & Commodities Regulation, Vol. 29, No. 4, February 1997). She has appeared on ABC’s Nightline as a securities litigation expert and has been a frequent speaker at the ALI-ABA’s Broker-Dealer Regulation course, which she co-chaired from 1997 to 2006. Barbara has been listed in the New York Super Lawyers – Metro Edition every year since 2006. Barbara is a member of the American Law Institute and a director of the New York County Lawyers’ Association, where she previously served as Chair of the Federal Courts Committee. She is also a member of the American Bar Association, the New York City Bar Association, and the Securities Industry and Financial Markets Association. Barbara is admitted in New York, California, and Washington, D.C., and is admitted to practice before the Supreme Court of the United States, the Second, Ninth, and District of Columbia Circuits, and numerous federal district courts.

Non-Party Discovery 2

NONPARTY DISCOVERY IN FEDERAL LITIGATION

Arthur H. Aufses *

I.

Background

A lawyer's initial thoughts regarding discovery are eliciting facts and damagingadmissions from depositions and discovery of opposing party, preparing the client fordepositions and carefully reviewing the client's documents.

A. However, another important component of discovery is non-party discovery. Inmost lawsuits of any complexity non-parties are involved, ranging fromaccountants, underwriters and other professionals to retired or terminatedemployees.

B. Nonparty discovery may be a means to discover things you need to know thatnobody tells you. This outline addresses things you need to know about nonpartydiscovery that nobody tells you.

C. "Nonparty" or "Non-party"? Compare, e.g., FRCP 30(b)(6) ("non-party") &SDNY Local Rule 37 ("non-party") with Advisory Committee Notes 1970Amendments for 30(b)(5) ("nonparty") & 300(1) ("nonparty"); but see AdvisoryCommittee Notes 1970 Amendments for 26(b)(3) at Witness' Right to OwnStatement ("non-party" in West's soft cover, Moore's' Federal Practice & USCA.,but "nonparty" on US. Government web site).

IL

Informal Discovery

A. Nonparty discovery is likely the only discovery where informal communicationwith witness is possible.

B. Informal discovery of third parties is interviewing third parties and reviewingdocuments of third parties without a subpoena. Can only be done if third party iswilling to cooperate.

C. Unprivileged: Be cautioned that communication with (or in presence of) nonpartyis unprivileged.

D. Ethical Restrictions: Disciplinary rules in some jurisdictions restrict direct contactwith former employees of adverse party. NY allows.

E. Cooperative or Uncooperative Nonparty: Golden handcuffs tied to retainingseverance payments may restrict employee's voluntary communication. Subpoenamay be required.

* Partner, Kramer Levin Naftalis & Frankel LLP.

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F. Has advantage of allowing you to investigate without giving access to youradversary, which you must do if depositions taken and documents producedpursuant to subpoena.

G. Also allows you to plant your side of the story with a witness you think will bedeposed or called as a trial witness by your adversary.

III. Quasi-Formal Discovery

A. Freedom of Information Act (FOIA), 5 USC 552. Applies to governmentalorganizations only. Advantages: No need to inform other parties if obtained inconnection with (or anticipation of) litigation. Disadvantages: Fuzzy responsetime in practice. May need to bring court proceedings to compel.

B. State comparables: E.g., N.Y. Freedom of Information Law (FOIL), N.Y. PublicOfficers Law § 85, et seq. (McKinney 's 2001).

IV. Tactics&Considerations for Both Informal and Formal Discovery

A. The nonparty may not understand the relevance of your requests. Explain theissues to the nonparty or nonparty's attorney. Send courtesy copies of thepleadings.

B.

Offer to enter into confidentiality agreement, if appropriate, to be so-ordered bycourt.

C.

To depose or not to depose?

1. Reasons to depose: Nonparty may die, become unavailable oruncooperative, or change story.

2. Reasons not to depose: Retain element of surprise; confine potentialcorridor of further information to adverse party.

3. Practice point: Often useful to provide a letter, even with subpoena,inviting witness to contact you to discuss matter.

D. Non-party witnesses are more likely to be unbiased because they usually have noeconomic stake in litigation and are not under the control of the opposing party.Accordingly, they are much more candid in depositions and documentproductions and are usually not as prepared for discovery as a party.

1. However, sometimes a non-party's interest is closely aligned with theopposing party and will coordinate discovery response with opposingparty.

2. Truly disinterested party testimony can cut both ways. Honest, but maybend over backwards to help both sides.

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2

3.

Practice point: Be careful what you ask. Try only to ask questions thatyou know the answer. Treat like cross at trial.

V.

Formal Discovery (Subpoena)

A.

General:

1.

Types of Subpoenas: duces tecum (documents) and ad testifrcandum(testimony).

B.

Scope

1.

Nonparty may be subpoenaed to provide the following discovery:

(a) Deposition on oral (FRCP 30(a)(1) & 45(c)(1)(C)) or written(FRCP 31(a)(1)) questions; or

(b) Documents or other tangibles or permit inspection (FRCP 34(c) &45(a) (1) (C)).

2.

Nonparty may NOT be subpoenaed to provide:

(a) Interrogatories (FRCP 33(a)); or

(b) Requests to admit (FRCP 36(a)).

3. Undue burden: Issuing attorney or party must take reasonable steps toavoid imposing undue burden or expense on subject of subpoena. Courtmay impose sanction for such violation, including lost earnings andreasonable attorney's fees (FRCP 45(c)(1)).

C.

Form & Issuance

1.

The subpoena document

(a) Form obtained from clerk or web (see, e.g.,www.nysd.uscourts.gov). Attorney or party fills out, and attorneyor clerk issues & signs (FRCP 45(0(3)).

(b) Pitfall: Text of FRCP 45(c)-(d) must be set forth on subpoena(FR CP(a)(1) (D)) .

(c) See geographical restraints below for noticed location and caption.

(d) Joint or separate: Subpoena for documents (or other tangiblethings or to permit inspection) may be joined with command toappear for testimony or issue separately (FRCP 45(a)(1)).

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3

Subpoena may be directed to individual or organization, pursuantto FRCP 30(b)(6). If directed to organization, the subpoena mustadvise the nonparty organization of its duty to designaterespondent person(s) who shall testify as to matters known orreasonably available to the organization (id).

Practice point: The federal subpoena form allows for only a fewlines of text to describe the documents you are seeking. Instead ofattempting to fit your request in this space, write "See attachment"in the box. Your attachment can then be as long as you need it tobe to properly articulate any necessary definitions, instructions andrequests. The attachment should look like a FRCP 34(b) documentrequest without the caption or the signature block.

Practice point: Either prior to serving the subpoena, orsimultaneously, you should serve a notice of subpoena on allparties' counsel and pro se parties. The notice of subpoena shouldattach a copy of the subpoena.

2.

Fees

(a) Required witness fees: finding these provisions can be maddening.See 28 USC 1821 ($40/day attendance fee (including fornecessary travel) plus travel allowance to and from based onmileage or common carrier) plus subsistence allowance whereapplicable. Travel allowance set by 5 USC 5704, which refers to5 USC 5707, which refers to regulations of the Director of theAdministrative Office of the U.S. Courts with respect to officialtravel by judicial branch employees. See 41 CFR § 301-10.300 etseq. (rev. July 1, 2001) (currently 34.5 cents per mile forautomobile plus tolls & parking) available on line throughwww.access.gno.gov/naralcfrlcfr-table-search.html . Practice tip:call clerk of court to ascertain your own current mileage rate if noready access to CFR (in SDNY, the cashier knew the current rate).

No specific fee per se for requesting documents or writtenquestions.

Payment of Witness fee: Payable to witness for amount issufficient (cash or certified check not required). Check sentsubsequently or promised at hearing may or may not be sufficient,depending on jurisdiction, witness' chutzpa and judge'sdisposition. Safest practice is to serve with subpoena a check foran amount more than sufficient to cover appearance.

4

(e)

(f)

(g)

(b)

(c)

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3.

Geographic location:

(a) Distance restriction (100 miles): Subpoena should aim for nonpartynot to travel more than 100 miles from place that person resides, isemployed or regularly transacts business, unless within state or totrial and requesting party shows heightened need, otherwise court,on timely motion, shall quash or modify the subpoena (FRCP45(c)(3)(A)(ii) & (B)(iii)).

(b) Caption for Issuance: Subpoenas issuing from outside jurisdictionmust bear caption of district court where deposition or discoverybeing made (see FRCP 45(a)(2)). That is the court that willaddress any discovery disputes concerning the subpoena (FRCP45(c), (e)). To find such foreign district, see 28 USC 81-131(specifying districts & geographical boundaries). Identify also onthe subpoena the district in which case is pending, with docketnumber.

(c) Finding location within restrictions: Practice tip: If need locationin foreign jurisdiction to make required disclosure returnable,possibilities include local court, court reporter, hotel or localcounsel.

(d) Advance payments of counsel & expenses: Where travel more than100 miles from courthouse is required, court may order advancepayment of expenses (including reasonable counsel fee) foradverse parties' attorneys, which are taxable cost in any event atend of proceeding (e.g., SDNYLoca1 Rule 30.1).

(e) Service location: Subpoena may be served within district whereissued, or without district where issued if within 100 miles ofproduction (deposition, hearing, trial production or inspection), orwithin state where state law allows.

(f) Where nonparty is outside court's reach, nonparty's documentsmay be available through party as within party's "possession,custody or control" (FRCP 34(a)). Such documents may includethose of accountants, bank, subsidiaries or parent or associatedentities, directors or controlling shareholder. See Gary Mennitt,Document Discovery: Possession, Custody or Control, NYL•J.,Nov. 21, 1995, at 1.

4.

Service

(a)

Time: Must allow reasonable time for compliance with subpoena(FRCP 45 (c) (3) (A) (i)) . 10 days usually sufficient.

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(i)

Depositions: Reasonable notice to every other party (FRCP30(b) (1))

(ii) Documents, tangibles & inspection: Reasonable notice(Note: FRCP 34(c), production provision referring tosubpoena, is exclusive, not inclusive, and says don't lookhere, look at Rule 45. The result is that under the rules, cantheoretically obtain documents from nonparty with lessnotice than required to obtain documents from party (whichrequires 30 days unless otherwise stipulated or court-ordered).

(b) Do I need to serve the original signed subpoena? Likely not. Evenfor issuance of summons, clerk often issues one or a few forcopying & service on multiple parties.

(c) Copies to other parties (underlying notice, but not subpoena): neednot provide other parties with copy of subpoena, but must sendthem notice of any commanded production of documents andthings or inspection of premises before trial (e.g., in form of noticeof deposition or document request) (see FRCP 45(b)(1)).

(d) See geographical restrictions above regarding service location.

(e) Proof of service: Keep proof of service (in event filing isnecessary). Such proof includes: statement of date, manner ofservice and of names of persons served, certified by the personwho made service.

D.

Duties to comply with subpoena: Need Nonparty Respond?

1.

To testimonial subpoena (including with documents)

(a) Nonparty may move to Quash and/or Modify: Nonparty mustcomply with subpoena for testimony (including with documentspursuant to FRCP 45(a)(I)), or move to quash and/or modify(FRCP 45(c) (3) (A) - (B)) .

(b) Nonparty may ignore only if: More than 100 miles travel isrequired, unless to trial within same state (FRCP 45(e)).

2.

To a subpoena for documents (or other tangibles or inspection)

(a) Nonparty can object (or move to quash or modify): Nonparty has14 days from service (or before time for compliance if less than 14days) to object in writing (FRCP 45(c)(B)), and then need notappear, unless subpoenaed to appear for testimony (FRCP

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6

45(c)(2)(A)). Nonparty may also move to modify or quash (FRCP45(c)(3)).

(b) Privilege or work product objections shall be made expressly,supported by description sufficient to enable demanding party tocontest the claim FRCP 45(d)(2)). There is split of authority overwhether objections of privilege or work product may be made aslate as time of production (see Tulle v. Henry, 98 F.3d 1411, 1416(D.C. Cir. 1996)).

3. Contempt: Failure to obey without adequate excuse may be deemed acontempt of court from where issued, unless travel more than 100 miles isrequired (except where subpoena is to trial is within same state) (FRCP45(e)). Nonparty can obey by timely objecting to subpoena requestingdocuments only, or by moving to quash and/or modify subpoenarequesting testimony (including with documents).

E.

Discovery Disputes for Court

1. Meet and confer: Local rules may require counsel to attempt to meet (inperson or telephone) and confer, prior to seeking judicial resolution ofdiscovery or non-substantive dispute (see, e.g., SDNY Local Rule 37.3,applying to "attorneys for the affected parties or a non-party witness ).

2.

Motion to quash or modify: Motion to quash or modify is made pursuantto FRCP 45(c)(3).

(a)

Subsection (A) sets forth the grounds upon which court shall quashor modify, which are essentially where subpoena:

fails to allow reasonable time to comply;

requires travel more than 100 miles from residence or placeof work, unless within state. (except if to trial andrequesting party shows heightened need) (FRCP45(c) (3) (B));

(iii) requires disclosure of privileged matter or proprietaryinformation; or

(iv) places undue burden. May include testimony or documentsthat are cumulative or available from party.

(b)

Court may quash or modify for grounds set forth in subsection (B)ofFRCP 45(c)(3), essentially where subpoena requires:

(i)

trade secret or other confidential research, development, orcommercial information;

7

(i)

(ii)

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(ii) unretained expert opinion or information, as specified inrule; or

(iii) nonparty to incur substantial expense to travel more than100 miles to attend trial.

(c) If subpoenaing party shows substantial need or undue hardship andassures reasonable compensation, court may order conditionedappearance or production (id).

3. Motion to compel: If objection properly made by nonparty to producingdocuments, then party serving must move for order to compel production(id.).

F.

Providing the Discovery Requested by the Subpoena

1. Producing documents: Must produce documents similar to FRCP 26: askept in ordinary course of business or organized by category labeled tocorrespond with categories in the demand (FRCP 45(d)(1)); Privilege logrequired (FRCP 45(d)(2)).

2.

Taking Nonparty Deposition

(a) Communication with adverse counsel: Ask nonparty aboutcommunication with adverse parties and adverse attorneys. Noattorney-client privilege between nonparty and party's attorneysexcept where and possibly to extent party's attorneys are acting asnonparty's attorney. Communications made while no attorney-client relationship may not be privileged.

(b) Who canconductthe out-of-district deposition? FRCP 45(a)(3)grants right to attorneys to "issue and sign a subpoena" from thedistrict where action pending or from foreign district from wheresubpoena properly issues. Query whether attorney admitted inforeign district and/or state must be employed to conduct thatforeign deposition. FRCP provision does not expressly grantattorney right to conduct the deposition.

(i) Traveling stenographer: Similarly, careful on using theregular court reporter for case where deposition is in sisterstate. Reporter may not be qualified to administer oath. SeeFRCP 28; but see FRCP 29 (discovery stipulations).

(c) Truth, justice & exhibits for all: At deposition any party has rightto copy of exhibits (FRCP 30(t), a provision discussed in advisorynotes as having particular use for nonparty discovery.

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VI. Recommended Reading

Scott M. Berman, Nonparty Discovery in Litigation, at 28 (Summer 1997 ABA Journal ofSection of Litigation).

Jay C. Carlisle, Nonparty Document Discovery From Corporations & GovernmentalEntities Under the Federal Rules of Civil. Procedure, 32 N.Y.L. SCH. L. REV. (1987).

9KL3 2826501.1

ARTHUR H. AUFSES III

Partner

[email protected] 212.715.9234 212.715.8234 New York

Overview

Arthur Aufses is a commercial litigator who often defends securities and class action lawsuits, conducts internal corporate investigations into accounting and related issues, and counsels corporate officers, directors, and financial advisors on securities and other potential liabilities.

Mr. Aufses’ recent representations include defending publicly traded companies in securities class action lawsuits and related regulatory investigations; defending corporate officers and directors in securities litigation, including the defense of the former president and chief executive officer of a software company specializing in practice management software products for physician practices against class action and other claims; representing the independent trustees of mutual funds in regulatory investigations and class action and derivative litigation; counseling the outside directors and audit committee members of a telecommunications and internet services provider through class action litigation and regulatory inquiries; recovering a multi-million dollar transaction fee for an investment bank; and resolving for a mortgage provider a series of nationwide class actions that challenged the validity of the company’s mortgage servicing practices.

News

Events

PAST EVENTS

DATE TITLE

June 4, 2009 Kramer Levin Represents GM Unsecured Creditors

DATE TITLE

May 5, 2008 Law Seminars International: Damages in Securities Litigation Workshop

RELATED PRACTICES

Litigation

Alternative Dispute Resolution

Appellate and Constitutional Litigation

Accountants' Liability

Madoff Task Force

Commercial Litigation

Securities and Shareholder Litigation

EDUCATION

BAR ADMISSIONS

COURT ADMISSIONS

- J.D., cum laude, Harvard Law School, 1980

- B. Phil., Oxford University, England, 1975

- B.A., magna cum laude, Yale University, 1973

- New York, 1981

- U.S. Court of Appeals, Second Circuit, 1996

- U.S. Tax Court, 1993

- U.S. Court of Appeals for the Fifth Circuit, 1987

- U.S. Court of Appeals, Third Circuit, 1981

Publications/Press

June 19, 2007 ACC Israel Annual Conference

May 7, 2007 Law Seminars International: Estimating Damages in Securities Litigation

June 5, 2006 Law Seminars International: Estimating Damages in Securities Litigation

June 6, 2005 Estimating Damages in Securities Litigation - Law Seminars International Workshop

May 14, 2003 Aufses Discusses Federal Civil Procedure at Upcoming N.Y. County Lawyers Association Event

DATE TITLE

June 6, 2011 Securities Enforcement & White Collar Litigation Alert: SEC Adopts Final Rule Implementing Dodd-Frank Whistleblower Program

December 2010 The Metropolitan Corporate Counsel: SEC Proposes Rules to Implement Dodd-Frank Whistleblower Program

November 8, 2010 Securities & White Collar Litigation Alert: SEC Proposes Rules To Implement Dodd-Frank Whistleblower Program

September 29, 2010 Securities Enforcement Alert: Fifth Circuit Reinstates Insider Trading Claims Against Mark Cuban

July 15, 2010 Securities Litigation Alert: Supreme Court Grants Certiorari in Mutual Fund Market Timing Case

July 7, 2010 Securities Litigation Alert: Supreme Court Closes Door to Foreign-Cubed Securities Lawsuits in U.S. Courts

June 2, 2010 Securities Litigation Alert: Second Circuit Holds That PSLRA’s Safe Harbor Provisions Shield American Express from Liability

CLERKSHIPS

PROFESSIONAL AFFILIATIONS

OTHER ACTIVITIES

Teaching

- Judge José A. Cabranes, U.S. District Court, District of Connecticut, 1981 - 1982

New York City Bar Association, Member, Committee on Federal Legislation, 1984-1987;Secretary, Committee on Legal Assistance, 1982-1984

-

American Bar Association -

New York County Lawyers Association, Member, Federal Courts Committee, 1990-present

-

National Institute of Trial Advocacy-

New York City BarAssociation-

Cardozo Law School-

March 26, 2010 Securities Litigation Alert: First Circuit En Banc Rejects 10b-5 Theory of Primary Liability for Securities Professionals Based on "Implied Statements"

December 8, 2009 Securities Litigation Update: Supreme Court Grants Certiorari in “Foreign-Cubed” Securities Case

August 12, 2009 Securities Enforcement Alert: Texas District Court Dismisses Insider Trading Charges Against Mark Cuban and Holds That Misappropriation Theory Requires Duty Not to Trade

July 15, 2009 Securities Litigation Alert: Eleventh Circuit Affirms Bar Order, in Connection with Partial Settlement of Class Action, Extinguishing Non-Settling Former CEO Defendant's Contractual Rights to Advancement of Defense Costs and Indemnification

June 5, 2009 Securities Litigation Alert: Fourth Circuit Holds That Investment Adviser and Public Company Parent May Face Federal Securities Law Liability for False Statements in Mutual Fund’s Prospectus; Discusses Test for Attribution Requirement

June 1, 2009 Securities Litigation Alert: Third Circuit Reiterates Standards to Evaluate the Use of Confidential Informants Post-Tellabs; Court Finds Motive and Opportunity No Longer Sufficient in Alleging Scienter

February 9, 2009 Securities Litigation Alert: Third Circuit Holds That Under SLUSA the Presence of Some Preempted State Claims Does Not Require Dismissal of an Entire Class Action - In re Lord Abbett Mutual Funds Fee Litigation

January 21, 2009 Securities Litigation Alert: First Circuit Holds That Underwriters May Face Liability Under Rule 10b-5 For False Statements In Issuer’s Prospectus; Discusses Expansive View Of Rule 17(a)(2) Liability

December 2008 Securities Litigation Alert: Ninth Circuit Holds That Representations in a Merger Agreement May Support Securities Fraud Action When That Agreement Is Filed As an Exhibit to

Awards/Honors

Securities Filings; Discusses Possible "Collective Scienter" Argument

November 10, 2008 Securities Litigation Alert: The Second Circuit Court of Appeals Declines the Invitation to Establish a Bright-Line Rule Barring Foreign-Cubed Securities Lawsuits

January 28, 2008 Litigation Alert: Supreme Court Affirms Stoneridge and Rejects Expansion of Securities Fraud Liability to Secondary Actors under a Scheme to Defraud Theory

January 14, 2008 Litigation Alert: When a Special Committee of a Corporation's Board of Directors Discloses the Findings of an Internal Investigation to the Full Board of Directors, the Special Committee May Find That It Has Waived Its Attorney-Client Privilege with Committee Counsel

February 22, 2000 Aufses, Friedman, and Sheldon Write Article for Special Litigation Section of New York Law Journal

DATE TITLE

October 20, 2010 13 Kramer Levin Attorneys Named to AVENUE’s Legal Elite

September 27, 2010 Kramer Levin Has More "Top 10" and "Top 100” Attorneys On the 2010 New York Super Lawyers List Than Any Other Firm; Overall Firm Lands 58 Attorneys on the List

October 5, 2009 Kramer Levin Lands 53 Lawyers on the New York Super Lawyers List and Six in the Survey's "Top 100” - No Firm Has More "Top 100" Lawyers

September 29, 2008 54 Kramer Levin Attorneys Recognized in Third Annual New York Super Lawyers, Three in Top 100, and Naftalis Receives Top Point Getter Status for all NY Metro Area

July 31, 2007 54 Kramer Levin Attorneys Recognized in Second Annual New York Super Lawyers

July 18, 2006 42 Kramer Levin Attorneys Nominated to Appear in First Edition of New York Super Lawyers, Four in Top 100

NEW YORK & PARIS

ALL RIGHTS RESERVED. ATTORNEY ADVERTISING. PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME.

© 2011 KRAMER LEVIN NAFTALIS & FRANKEL LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP

Electronic Discovery 3

Electronic Discovery June 14, 2011

Charles W. Cohen Charles W. Cohen

Why eDiscovery Requires New Skills

The Perfect Storm

Volume

Sanctions

Technological Changes

Risk

Electronic Documents Are Different From Paper

Documents

What Makes Electronic Documents Different?

• Volume• Location• Ease of Transmission• Metadata and hidden data• Dynamic/Alterability

Volume

• One CD = 15 boxes• One DVD = 95 boxes• One 1GB USB drive = 20 boxes• 100 GB hard drive = 2000 boxesAnd we keep more of it!

Location, Location, Location

Location

The Cloud

Ease of Transmission

• Just hit a button• Can send to many at once• Can send thousands of documents across

the hall or across the world with the same effort

Metadata and Hidden Data

• What you see is NOT what you get

• Metadata

• Hidden data

Hidden Data

• What You See DOCUMENT FOR DISTRIBUTION

This is a perfectly appropriate document for distribution. It does not appear on the screen to have any problems.

But wait; could this document be hiding information you would rather not send?

Hidden Data

• What You Send DOCUMENT FOR DISTRIBUTION[BP1]

This is a perfectly appropriate document for distribution. [JOE: I am concerned that this might violate our policy on giving gifts. We should absolutely reconsider using this language before releasing this for distribution.]It does not appear on the screen to have any problems.

But wait; could this document be hiding information you would rather not send?

Wow, this comment tool is great. I wonder if it is ok for the recipient to see it…

BP1

Metadata• But wait, there’s

more• The Properties tab

reveals the concerns of the commenter

• TITLE: MEMO (LAWYER SAID CANNOT GIVE GIFTS VERSION)

Dynamic• Active or Online Data• Replicant Data• Residual Data• Backup Data• Legacy Data

Easily Alterable• Counsel may inadvertently change the data after collection.•NEVER open ANY data (hard drives, CD, discs, thumb drives etc.) from a client, a vendor, adversary or colleague. Not even a quick peek!•Only let qualified technical people open media.

Producing Electronic Documents Differs From Producing Paper

Documents

eDiscovery Rules and Forms

Early and Often

• Rule 26(f) Preliminary Conference

• Rule 16(b) Scheduling Order

• Rule 26(a) Initial Disclosures

Obtaining Ediscovery

• Rule 33 interrogatories• Rule 34 document request• Rule 36 requests for admission• Depositions• Rule 45 non-party subpoenas

Rule 34 Document Requests

• Requestor can specify format of production. (Rule 34(b)(1)(C))

• Responding party can object and state a different form. (Rule 34(b)(2)(D))

• Default production standards. (Rule 34(b)(2)(E))

Special Limitation on the Scope of Electronic Discovery

Reasonably Accessible: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Rule 26(b)(2)(B)

But Court can still order production.

Reasonably Accessible: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Rule 26(b)(2)(B)

But Court can still order production.

Safe Harbor“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

Cost-Shifting

Defensive Discovery

Protect Yourself With Agreements

But . . .You May Be Locked In To Your

Agreement

In Re Fannie Mae 552 F.3d 814 (D.C. Cir. January 6, 2009)(OFHEO spent more than $6 million or 9% of its total annual operating budget)

Privilege Issues

Using ESI at Trial

Using ESI at Trial

• Admissibility• Authenticity• Hearsay

Failure Is Not an OptionFailure Is Not an Option

Is that All?Is that All?

Questions?

Charles W. CohenHughes Hubbard & Reed LLPOne Battery Park PlazaNew York, NY 10004(212) [email protected]

Charles W. Cohen Partner, Co-Chair, eDiscovery Practice Group

New York P: (212) 837-6856 F: (212) 299-6856

[email protected]

Areas of Concentration

■ Litigation, including products liability and general commercial litigation with experience in state and federal courts, arbitrations and Congressional and Department of Justice investigations.

■ Electronic discovery and information management in litigation and non-litigation settings.

Awards and Recognitions

■ Ranked by Chambers USA as one of the top Products Liability lawyers in the United States (2009, 2010, 2011)

■ Ranked by Euromoney's Guide as one of The World's Leading Product Liability Lawyers

■ Recognized and listed in The International Who's Who of Product Liability Defence Lawyers and The International Who's Who of Business Lawyers (2011)

Professional Activities

Current

■ Chair, New Jersey Defense Association Products Liability Committee

■ Member, Defense Research Institute (DRI) E-Discovery Committee

■ Member, Lawyers for Civil Justice E-Discovery Committee

Prior

■ Association of the Bar of the City of New York Special

Practice Areas Litigation eDiscovery Product Liability & Toxic Torts

Education Information Brooklyn College, B.A., 1992, magna

cum laude, Phi Beta Kappa Georgetown University Law Center,

J.D., 1995, cum laude

Bar Admissions New York, 1996 District of Columbia, 1997 New Jersey, 2004

Committee to Encourage Judicial Service (Secretary 9/2000 to 12/2006)

■ New York County Lawyers’ Association Trade Regulation Committee (Vice-Chair 9/1997 to 6/2000)

Court Admissions

■ United States Supreme Court

■ United States Court of Appeals for the Second Circuit

■ United States Court of Appeals for the Tenth Circuit

■ United States District Court for the District of New Jersey

■ United States District Court for the Eastern District of New York

■ United States District Court for the Northern District of New York

■ United States District Court for the Southern District of New York

Highlighted Matters

Selected Decisions

■ In re: Vioxx Litigation, 395 N.J.Super. 358, 928 A.2d 935 (App. Div. 2007) (affirming dismissal for forum non conveniens of cases brought against client by residents of England and Wales).

■ Hemingway v. New York City Health and Hospitals Corp. and New York Blood Center, Inc., 13 A.D.3d 484, 787 N.Y.S.2d 86 (App. Div., 2nd Dep’t. 2004) (affirming summary judgment in favor of client).

Selected Matters

■ Representation of a major pharmaceutical company in national and international class action and individual personal injury litigation.

■ Representation of a major blood center in numerous cases involving alleged virus-contaminated blood transfusions as well as patent licensing disputes.

■ Representation of a major medical device manufacturer in patent-antitrust cases

■ Representation of a major music licensing organization in various antitrust matters and in commercial litigation.


2

■ Representation of a major insurance company in insurance coverage matters involving silicone-gel breast implants and tobacco.

Highlighted Publications

Publications

■ Zubulake Revisted: Six Years Later, Law 360, January 15, 2010 (http://securities.law360.com/articles/143679) (co-author)

■ Products Liability 2008: A Year in Review (American Bar Association Section of Litigation web publication) (co-author)

■ Intellectual Property Misuse: Licensing and Litigation (American Bar Association Section of Antitrust Law 2000) (co-author and member of Editing Committee)

■ Intellectual Property Law Annual 1997, 1998, 1999, 2000, and 2001 (New York Intellectual Property Law Association) (co-author of “Antitrust and Misuse Law” chapter)

Lectures

■ “The Expanding Role of Search in E-Discovery,” Webinar, May 23, 2011

■ “Data Protection,” International Bar Association Conference, Krakow, Poland, May 20, 2010 “Watson, The NY Times Doomsday Article and the Legal Profession,” ESIBytes Podcast, April 1, 2011 (available at www.esibytes.com/?p=1829)

■ “What Lawyers Need to Know About Search,” Catalyst Secure’s “The Expanding Role of Search in E-Discovery” Seminar, New York, New York, March 2, 2011

■ “Legacy Data Issues and E-Discovery Pain,” ESIBytes Podcast, January 18, 2011 (available at www.esibytes.com/?p=1601)

■ “A Focus on Class Actions and MDL: Coordination and Other Winning Strategies for Resolution in Multiple Jurisdictions,” American Conference Institute “Mass Tort Products Liability Claims” Program, New York, New York, September 30, 2010

■ “Electronic Discovery,” New York County Lawyers’ Association seminar, “Winning Cases in Federal Court,” New York, New York, July 7, 2010

■ “Management of Complex Litigation,” International Bar Association Conference, Washington, D.C., April 15, 2010

■ “e-Discovery Case Law Update - Winter/Spring 2010,” Fios Inc. Webcast, March 24, 2010


3

■ “Privilege in the Electronic Age,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, March, 2010

■ “Mass Torts: The Defense Perspective,” New York State Trial Lawyers Institute CLE Seminar, “How to Find, Understand, and Litigate Mass Torts,” New York, New York, May 7, 2009

■ “Multilingual Madness: Globalization is Colliding with the Complexity of E-Discovery,” Legal Tech, New York, New York, February 3, 2009

■ “Products Liability 2008: A Year In Review,” American Bar Association, Joint Meeting of the Products Liability, Mass Tort, and Environmental Law Committees, Vail, Colorado, January, 2009

■ “We’re All in This Together: Coordination with Your Outside Counsel Is Essential to Successful E-Discovery,” Corporate Counsel Seminar “Mastering the Discovery Process for the General Counsel,” New York, New York, November, 2008

■ “The Ups and Downs of Removal and Remand,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Data Overload: Effectively Dealing with Information Preservation and Discovery,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Qualcomm v. Broadcom: What Lessons Have We Learned?,” Association of Litigation Support Professionals, Webinar, May, 2008

■ “Discovery of Foreign Language Documents,” Catalyst Secure Seminar, New York, New York, December, 2007

■ “Managing Multiple Litigations and Class Actions,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Somerset, New Jersey, October, 2007

■ “Developing Winning Litigation Strategies Under the New E-Discovery Rules,” New York City Bar Association, New York, New York, June, 2007

■ “Use of Technology at Trial,” Atlantic City Inns of Court, Atlantic City, New Jersey, March, 2007

■ “Electronic Discovery,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, October, 2005


4

No aspect of this communication has been approved by the Supreme Court of New Jersey. For information regarding theselection process for honors or accolades referred to above, please visit www.hugheshubbard.com/awardmethodology.

Taking and Defending Depositions 4

cahill.com | New York | Washington D.C. | London

Susan BuckleyPARTNER

212.701.3862 Phone 212.378.2166 Fax [email protected]

Cahill Gordon & Reindel LLP Eighty Pine Street New York, NY 10005-1702

Practices:Intellectual PropertyLitigationMedia

Education:Mount Holyoke College, B.A., 1973Fordham University School of Law, J.D.,1977

Bar Admission:New York

Susan has extensive experience litigating communications law matters,especially those involving the rights of the press. During the course of hercareer, she has successfully represented journalists and media entities incases concerning a wide variety of issues affecting the media, includingthe prior restraint doctrine, press access issues, the reporter’s privilegeand the protection of confidential sources and has defended journalistsand media clients in defamation and privacy cases, copyright matters andlitigation challenging governmental efforts to restrict newsgatheringactivities.

Her clients have included the four major broadcast networks, The NewYork Times, Time Inc., HBO, the Hearst Corporation, Business Week,CNN, Court TV, NY1, local broadcasters, motion picture distributors,music distributors, cable program suppliers and other publishers ofnewspapers and magazines.

Susan is named among the top litigators in New York by Chambers USA,The Legal 500 and Euromoney's Benchmark Litigation.

SELECTED MATTERS:

Successfully represented national news organizations in numerouslitigations challenging state efforts to restrict newsgatheringactivities at polling places on election days (e.g., AmericanBroadcasting Companies, Inc. v. Blackwell).Represented Senator Mitch McConnell and the NationalAssociation of Broadcasters in a First Amendment-rootedchallenge to the constitutionality of the Bipartisan CampaignReform Act (McConnell v. Federal Election Commission).Represented the Brooklyn Museum in its dispute with the City ofNew York and Mayor Rudolph Giuliani over the Museum's right todisplay controversial, contemporary art (Brooklyn Institute of Artsand Science v. City of New York).Won reversal of a $10 million jury verdict in a defamation andprivacy action concerning a “20/20” investigative report (Levan v.Capital Cities, Inc.).Represented The New York Times in its effort to preclude thegovernment from subpoenaing records from telephone companiesthat would reveal reporters’ confidential sources (New York TimesCo. v. Gonzales).Obtained dismissal at the summary judgment stage of a multi-million dollar defamation action attacking a “Primetime Live”investigative report on questionable practices of televangelists(Tilton v. Capital Cities, Inc.).

http://www.cahill.com/practices/130



mailto:[email protected]

Represented Judith Miller and Matthew Cooper in opposing thegovernment's demand that they reveal confidential sources inconnection with a criminal investigation into the leak of a CIAagent’s identity (Miller v. United States).Obtained dismissal of claims in a wrongful death action premisedon the theory that the children who committed the crime weredriven to do so by exposure to music advocating criminal behavior(Pahler v. Slayer).

PROFESSIONAL ACTIVITIES:Susan’s article addressing the application of the Espionage Act tojournalistic activities, “Reporting on the War on Terror: The EspionageAct and Other Scary Statutes,” was recently published by the Media LawResource Center.Susan is a member of the Governing Board of the ABA’s Forum onCommunications Law and serves as a Master for the Federal Bar CouncilAmerican Inn of Court. She has served on the Communications and MediaLaw Committee of the Association of the Bar of the City of New York andthe Media Law Committee of the New York State Bar Association.

Susan joined Cahill in 1977, following her graduation from FordhamUniversity School of Law, where she served as an Editor of the FordhamLaw Review. She became a partner in 1985.

Admission of Scientific Evidence in Federal Court after Daubert 5

NEW YORK COUNTY LAWYERS ASSOCIATION

ADMISSIBILITY OF SCIENTIFIC EVIDENCE IN FEDERAL COURTS AFTER DAUBERT

BY:

Thomas V. Marino, Esq.

Dunnington, Bartholow & Miller, LLP

June 14, 2011 I. Background………………………………………………………………………2 II. Statutory Standard………………………………………………………………3 III. Daubert v. Merrell Dow Pharmaceuticals……………………………………….4 IV. Applicability of Daubert…………………………………………………………8 V. 2000 Amendment to Rule 702…………………………………………………...8 VI. Additional Non-Exclusive Considerations……………………………………...9 VII. Expert Reports…….……………………………………………………………11 VIII. Attacking Your Adversary’s Expert…………………………………………..15 IX. Don’t Let Daubert Blind You to Other Ways of Attacking Your Adversary’s Scientific Evidence…………………………….16 X. Trial……………………………………………………………………….…….17 XI. Appeals………………………………………………………………………….17 XII. Selected Cases of Note………………………………………………………….17

I. BACKGROUND Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): Frye articulated the “general acceptance” standard of admissibility of novel scientific evidence in federal courts.

1. Frye held that evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine, was inadmissible in federal court. In Frye the United States District Court for the District of Columbia explained that a federal court will only admit scientific evidence at trial if the procedure and results of the scientific process are generally accepted as reliable in the scientific community.

2. In adopting the Frye test, Courts avoided the difficult task of evaluating the merits of

novel or “fringe” scientific theories and instead deferred to the consensus of opinion in the scientific community involved with the proffered approach to determine the viability of the approach.

3. Even after the effective date of the Federal Rules Evidence, which was July 1, 1973, a

majority of federal courts and most state courts, including those in New York, continued to follow the Frye test. (E.g., People v. Angelo, 88 N.Y.2d 217, 644 N.Y.S.2d 460, 666 N.E.2d 1333 (1996) (holding polygraph results inadmissible because defendant failed to demonstrate that polygraph results are generally accepted by the scientific community as reliable). A party challenging the admissibility of scientific evidence must still request a Frye Hearing in New York. (E.g., Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 450, 857 N.E.2d 1114, 1122 (2006); Maiorani v. Adesa Corp., 921 N.Y.S.2d 255 (2d Dept. 2011)). However, after the adoption of the Federal Rules of Evidence, some federal courts began to view the “rigid general acceptance requirement” as outdated, finding that it was nothing more than a rigid exercise in “nose-counting” that led to the exclusion of “helpful” scientific evidence. See DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 951 (3d Cir.1990); see also In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990), cert. denied sub nom. General Elec. Co. v. Knight, 499 U.S. 961, 111 S.Ct. 1584, 113 L.Ed. 649 (1991); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). Tracking the language of Rule 702 of the Federal Rules of Evidence, the Third Circuit adopted a standard which emphasized “helpfulness” to the jury.

4. In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, a

decision written by Justice Blackmun, resolved the “sharp divisions among the courts regarding the proper standard for admission of expert testimony.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585, 113 S. Ct. 2786 (1993). In construing Rule 702 of the Federal Rules of Evidence (admissibility of scientific evidence), the Supreme Court found no reference to Frye’s “general acceptance test” or to the Frye opinion itself in either the body of the statute or the language of the advisory committee notes. Rather, the Supreme Court in Daubert found that the “general acceptance” standard of Frye had been “superceded” by the adoption of the Federal Rules of Evidence and articulated a

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new more “flexible” standard for the admissibility of scientific evidence in federal courts; one that is more consistent with the “liberal thrust” of the Federal Rules of Evidence1.

II. STATUTORY STANDARD

1. Federal Rules of Evidence Occupy the Field: “In principle, under the Federal Rules no

common law of evidence remains.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 588. Fed. R. Evid. 402 specifically provides that:

All evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Thus, the Federal Rules of Evidence were intended by Congress to supersede the common law. See e.g. Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 179 F.R.D. 450, 457 (D.N.J. 1998) citing Daubert (“the Federal Rules of Evidence superseded the common law ‘general acceptance’ test for admissibility of scientific evidence enunciated in Frye v. United States.”)

2. Federal Rules of Evidence Generally Have a Liberal Standard for Admissibility:

The standard for admissibility under the Federal Rules is a liberal one. Under Fed. R. Evid. 401 “relevant evidence,” for example, is defined as evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

3. Rule 702 of the Federal Rules of Evidence Has a Liberal Standard For the

Admissibility of Scientific and Technical Evidence: At the time of the Daubert decision in 1993, Rule 702 of the Federal Rules of Evidence provided:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

4. Fed. R. Evid. 104(a) Establishes the Court as a Gatekeeper of Admissibility. Fed. R.

Evid. 104(a) provides in relevant part:

1 But See People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994), where the New York Court of Appeals while applying Frye declined to follow Daubert.

3

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. . . .

III. DAUBERT

1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585, 113 S. Ct. 2786, 2972 (1993): The Supreme Court articulated a process courts must follow before allowing the admissibility of scientific evidence.

2. Facts: Infants and their guardians sued Merrell Dow, manufacturer of the anti-nausea drug Bendectin, alleging the drug caused birth defects as a result of their mother’s ingestion of Bendectin during pregnancy. Defendant moved for summary judgment. In support of its motion, defendant submitted expert testimony, which reviewed the conclusion reached in all the Bendectin studies (over 30 published studies involving over 130,000 patients) -- no study had found Bendectin to be a human teratogen capable of causing deformities in human fetuses. Plaintiffs opposed the motion with three types of expert evidence (1) “in vitro” (test tube) and “in vivo” (live) animal studies, (2) structural comparative analysis between Bendectin and other substances known to cause birth defects, and (3) “reanalysis’ of previously published epidemiological studies.

3. Procedural History: The District Court granted defendant’s motion for summary judgment, because the plaintiffs failed to prove causation with significant epidemiological evidence sufficient to undermine the abundant epidemiological studies disproving their theory. Relying on Frye, the court found the “reanalysis” was not “generally accepted” within the scientific community as valid, as the reanalysis studies had not been subjected to peer review, and the court held the evidence inadmissible. Also relying on Frye, the Court of Appeals affirmed. The Supreme Court granted certiorari.

4. Holding: The Supreme Court vacated and remanded. Relying on both the language and the legislative history and the “liberal thrust” of the Federal Rules of Evidence, the Court held that the “rigid general acceptance requirement” enunciated in Frye had been “superceded” by the “helpfulness” standard articulated in Fed. R. Evid. 702. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 589.

5. New Guidelines: The Court adopted a “flexible” approach to determine “helpfulness,” identifying relevance and reliability as two factors which should be considered by the trial court who, under Fed. R. Evid. 104(a), has “some gate-keeping responsibility.” “[U]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 589.

4

a. Relevance: “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 591.

i. the evidence must relate to an issue in the case; “expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 589.

ii. the evidence must “fit” the inquiry. “Fit” relates to “whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Admittedly, “fitness” is not always obvious and “scientific validity” for one purpose is not necessarily scientific validity for other, “unrelated purposes.” The evidence must be “based on scientifically valid principles.” Id.

b. Reliability: No longer can courts depend on Frye’s “general acceptance” standard to guarantee the reliability of proffered scientific evidence. Nevertheless, courts must engage in “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 592-93. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 590. The conclusion itself is unimportant; the only relevant inquiry relates to the methodologies used in arriving at the conclusion.

c. Other Factors to Consider: The Court suggested a non-exhaustive list of general guidelines to assist the trial courts’ flexible “gate-keeping” functions.

i. “Falsifiability or Refutability:” Whether the theory or technique can be (or has been) tested or if there is a known error rate.

ii. Peer Review and Publication: While “not a sine qua non of admissibility,” this factor is of major importance “because it increases the likelihood that substantive flaws in methodology will be detected.” Id. at 593. The Court would not find the criteria dispositive, because there is not always a correlation between the validity of a theory and the existence of peer reviews and publications (i.e. if a theory is new, of limited interest, or innovative, it may not be published).

iii. Error Rate: The known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation.

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iv. General Acceptance: The Frye test, while no longer the sole inquiry, still has a bearing on the inquiry, since general acceptance is a good indication or reliability.

6. Five Factor Test: The Advisory Committee for the Federal Rules of Evidence has summarized the specific, non-exclusive factors articulated by the Supreme Court in Daubert as follows:

(1) whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is itself a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; (5) whether the technique or theory has been generally accepted in the scientific community.

7. Daubert on Remand, 43 F.3d 1311 (9th Cir. 1995): SAME RESULT.

a. Holding: The Ninth Circuit held that the evidence was inadmissible under Fed. R. Evid. 702 and that summary judgment was proper. Specifically, the court found that the proffered evidence failed both the “reliability” and “relevance” tests under Fed. R. Evid. 702.

b. Reliability: Finding the Supreme Court’s list of relevant factors to be “illustrative rather than exhaustive,” the Ninth Circuit on remand focused on a new factor, the “objective proof” of the research conducted.

i. “One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying . . . If the proffered expert testimony is not based on independent research, the party proffering the evidence must come forward with other objective evidence, verifiable evidence . . . One means of showing this is by . . . normal scientific scrutiny through peer review and publication.” Daubert, 43 F.3d at 1317-1318.

ii. “That an expert testifies based on research he conducted independent of the litigation provides important objective proof that the research comports with the dictates of good science. . . . [I]ndependent research carries its own indicia of reliability. . . .” Daubert, 43 F.3d at 1317.

iii. Plaintiffs’ proffered evidence was held inadmissible, primarily because it did not meet the above-quoted test. Since it had been prepared solely for the purpose of the litigation and had not been subject to peer review nor

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commented on by the scientific community, the court found that there were no objective sources of verification.

iv. Re-awakening of Frye: While the Ninth Circuit had ostensibly rejected the automatic deference to the scientific community for the admissibility of evidence under Frye, it seems inevitable that the standards they apply will come directly from the scientific community, and “reliability” still depends heavily upon “general acceptance.”

c. Relevance: The court found that the plaintiffs had also failed the “fitness” requirement, because the evidence was insufficient to sustain the burden of proof on causation issues.

i. Testimony only proved that Bendectin was capable of causing birth defects, since there was an increased incidence of birth defects in Bendectin users. However, this fell short of concluding that Bendectin was, more likely than not, the legal cause of the injuries in question -- that is, that the incidence of birth defects are more than doubled in cases of Bendectin use.

ii. Accordingly, the expert’s testimony was not likely to “assist the trier of fact . . . determine a fact in issue” and thus failed the “fitness” requirement.

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IV. APPLICABILITY OF DAUBERT

1. Daubert Is Intended to Apply to All Scientific Evidence: “Although the Frye decision itself focused exclusively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, are properly subject to judicial notice under Federal Rule of Evidence 201.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 593.

2. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999): In Kumho, the Supreme Court held that the Daubert approach applies equally to all expert testimony, not merely scientific experts (though obviously the approach will be implemented somewhat differently in those contexts).

V. 2000 AMENDMENT TO RULE 702

1. Court as Statutory Gatekeeper: In 2000, Rule 702 of the Federal Rules of Evidence was amended to “affirm[] the trial court’s role as gatekeeper and provide[] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.” Advisory Committee notes to 2000 Amendment. Essentially, the 2000 Amendments to Fed. R. Evid. 702 was a codification of Daubert and Kumho Tire, although no attempt has been made to codify the specific list of non-exclusive factors recited by the Supreme Court for evaluating a proffer of specialized knowledge.

2. Amended Fed. R. Evid. 702: Amended Fed. R. Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise, if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

3. The Amendment Was Intended to Insure that the Court Consider the Conclusions Reached to Insure that a Reliable Methodology Was Reliably Applied. The Supreme Court in Daubert declared that the “focus, of course, must be solely on principles and

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methodology, not on conclusions.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. at 598. However, the Court later recognized that “conclusions and methodology are not entirely distinct from one another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). The amendment specifically requires that “the trial court scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case.” Fed. R. Evid. 702 advisory committee’s note.

4. The Amendment Does Not Prevent A Party From Calling a Witness to Educate the Factfinder On General Principles. For this type of generalized testimony, Fed. R. Evid. 702 simply requires: “(1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.” Id.

VI. ADDITIONAL NON-EXCLUSIVE CONSIDERATIONS

Courts both before and after Daubert have found other factors relevant to determining if expert testimony is sufficiently reliable to be considered by the trier of fact. This can result in additional difficulties for parties seeking to admit experts. The expert’s opinion must satisfy the somewhat unforeseeable and often complex factors that may be adopted by courts. Additional non-exclusive factors include:

1. Trustworthiness of the underlying data. See Haggerty v. Upjohn Co., 950 F.Supp.

1160 (S.D. Fla. 1996). (Expert opinion based on hearsay case reports and inherently biased Spontaneous Reporting System Data found inadmissible). Is this fair when the unavailability of trustworthy underlying data is the source of the litigation? See Wantanabe Realty Corp. v. City of New York, 2004 WL 188088 (S.D.N.Y. 2004) (Plaintiff expert’s valuation of Thunderbolt rollercoaster destroyed by defendant was found inadmissible).

2. Technique based on subjective analysis or interpretation. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). This can handicap the expert’s ability to make inferences based on his own expertise. See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994). (Treating physician's expert opinion testimony that he could tell whether particular posterior subcapsular cataract was caused by radiation just by looking at it was found inadmissible.)

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3. Judge’s experience and common sense. Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP 325 F.Supp.2d 841,847 (M.D.Tenn. 2004). Should judges be allowed to find expert opinion evidence inadmissible based on their preconceived notions?

4. Expert’s research and opinion developed for the purposes of testifying. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.). Isn’t this factor more appropriate for attacking credibility of the witness? The Supreme Court in Daubert stated "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id at 595.

5. Federal design and performance standards. Has the expert has identified and discussed any relevant federal design or performance standards? Milanowicz v. The Raymond Corp., 148 F.Supp.2d 525, 530-32 (D.N.J. 2001).

6. Standards established by independent professional organizations. Has the expert provided detailed design standards which reflect systematic testing and safety certification? Id.

7. Relevant literature. Has the expert has supported his conclusions through discussion of the relevant literature? Id.

8. Evidence of industry practice. Has the expert's failed to include evidence of industry practice? Has the expert corroborated his assertions by identifying products and practices relevant to his opinion? Id.

9. Product design and accident history. Has expert considered the design and accident history of the product in his history? Id.

10. Illustrative charts and diagrams. Has expert provided charts, diagrams, and other visual aids to explain his conclusions and to assist the potential trier of fact in understanding his testimony? Id.

11. Obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)(testimony failed to consider other obvious causes for the plaintiff’s condition).

12. Reliability See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999)(Daubert’s general acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998)(en banc)(clinical doctor was properly precluded from testifying to the toxicological cause of plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)(rejecting testimony based on “clinical ecology” as unfounded and unreliable).

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VII. EXPERT REPORTS

1. Fed. R. Civ. P. 26(a)(2)(B):

Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain a complete statement of all opinions to be expressed and the basis and reasons in forming them; the data and other information considered by the witness in forming [the opinions]; any exhibits to be used as a summary of or support for [the opinions]; the qualifications of the witness, including a list of all publications authored by the witness within the previous 10 years; a listing of any other cases in which, during the previous four years, the witness has testified as an expert at trial or by deposition; and a statement of the compensation to be paid for the study and testimony in the case.

Not all Experts Need Provide an Expert Report

a. Fed. R. Civ. P. 26(a)(2)(B) does not require that all expert witnesses produce a report. The Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26 only “require that persons retained or specially employed to provide expert testimony or whose duties as an employee of the party regularly involve the giving of expert testimony.…” Basically, only a professional witness -- a hired gun -- need provide such a report. Thus, the CEO of a company or a treating physician could testify at a deposition or at trial as an expert without first issuing a written report, provided, of course, their duties as an employee did not regularly involve the giving of expert testimony.

b. Although Fed. R. Civ. P. 26(a)(2)(B) does not require a report for most employees of a party, it should be noted that Fed. R. Civ. P. 26(a)(2)(A) requires a party to disclose the “identity” of any person who may be used at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. This rule requires a party to disclose the “identity” of all witnesses offering expert testimony regardless of whether or not the witness is required to produce a report. Once the identity of the witness is made known, other forms of disclosure are available to discover the substance of the employee witness’ expert evidence.

c. There may be a conflict between Rule 26(a)(2)(B) of the Fed. R. Civ. P. and Rule 701 of the Fed. R. Evid. Rule 26(a)(2)(B) excludes an employee of a party who may be an expert from the requirement of serving and filing an expert report. But Rule 701 requires “lay” testimony involving “scientific, technical or other

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specialized knowledge” to comply with Rule 702 of the Fed. R. Evid. (Daubert). Does Rule 701 attempt to classify expert employees as lay witnesses simply because they have not prepared an expert report? If it does, Rule 701 confuses experts with professional witnesses.

2. Who Signs the Report? Under Fed. R. Civ. P. 26(a)(4), the report must be “in writing, signed, served, and promptly filed with the court.” (Most state courts do not require filing of expert reports). The Advisory Committee Notes to the 1993 Amendment of Fed. R. Civ. P. 26(a)(2)(B) provide: “Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports. . . . Nevertheless, the report . . . must be signed by the witness.”

4. Procedural Details

a. Timing: Except where otherwise provided under a scheduling order (as is often the case), expert witnesses must be disclosed and reports exchanged 90 days before “the trial date or the date the case is to be ready for trial.”

i. If the expert witness disclosure is being offered solely in rebuttal, it must be produced 30 days after receipt of the other party’s expert report.

ii. Fed R. Civ. P. 26(e)(1) requires parties to supplement the information contained in their expert’s reports, as well as statements made by experts at deposition, “at appropriate intervals.” Any changes to the report must be disclosed by the time the parties’ pretrial disclosures are due under Fed. R. Civ. P. 26(a)(3) (i.e., generally 30 days before trial).

iii. Fed. R. Civ. P. 16(b) requires the court to issue a scheduling order at the outset of the case. The scheduling order offers an occasion for the parties to consider modifying the expert discovery requirements.

5. Additional Items to Be Included in the Expert Report:

a. an explanation of the expert’s compensation;

b. a copy of the expert’s resume;

c. a list of documents “considered” by the expert (see above);

d. a list of cases in which the expert has testified, at trial or deposition, over the past four years (note that this does not include cases where only a report was filed).

e. a list of exhibits the expert expects to refer to on direct testimony.

6. Service of the Report: Fed R. Civ. P. 26(a)(2)(A) requires that: “a party shall disclose to the other parties,” not merely an adversary, “the identity of any person who may be

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used at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence.” Does this mean that a copy of the report needs to be served on all parties? Fed. R. Civ. P. 26(a)(2)(B) further explains that “this disclosure [meaning the disclosures required by Rule 26(a)(2)(A), to be served on all parties]” just include an expert report.

7. Level of Detail

a. On its terms, Fed. R. Civ. P. 26(a)(2)(B) requires extremely expansive disclosure of the substance of the expert’s intended testimony: a “complete statement of all opinions to be expressed and the basis and reasons therefor,” together with all data “considered” and “any exhibits to be used.” In Daubert, the Supreme Court clearly put all litigants on notice of the “exacting standards of reliability” that expert testimony must satisfy. The Supreme Court in Daubert cautioned that a litigant should not “initially present less than their best expert evidence in the expectation of a second chance should their first try fail.” After Daubert, the only safe way to avoid an in limine ruling disqualifying your expert is to include a full recital of the methodology employed by the expert using language you are confident the court will understand.

b. This is not to say that the report will not evolve as the case proceeds. Rule 26(e) of the Federal Rules of Civil Procedure requires, under penalty of preclusive sanctions, that parties supplement “at appropriate intervals” all expert reports (and other discovery responses as well) on their own initiative and if it is discovered that “in some material respect the information [previously] disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties, during the discovery process or in writing.” The “appropriate intervals” might be set by the court in the Rule 16 conference order. The final deadline for supplementation is set in Fed. R. Civ. P. 26(e)(1) to coincide with the deadline for disclosure of witness lists and trial exhibits under Fed. R. Civ. P. 26(a)(3). The Rule 26(a)(3) deadline is whenever the court says it is, or where no court deadline is imposed, 30 days before trial.

c. If the methodology used by the expert is non-standard or innovative, the report should probably be very detailed. If, however, the approach taken by the expert is routine, his opinions, reasons, and data can all be expressed in shorthand, arguably without violating Fed R. Civ. P. 26(b)(2) of course.

Example: An economic expert might say: “Working from the data contained in the company’s 1996 through 1998 financial statements, I utilized a discounted cash flow approach to project future earnings.” At trial, the expert might offer considerably more detail about what data from that broad universe he used, and would almost certainly give a dissertation on what a “discounted cash flow approach” is.

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d. Because Fed. R. Civ. P. 26(e) requires supplementation on pain of preclusion, supplementation is often viewed as a defensive measure. But it can also be used offensively to improve or correct an expert report in light of later acquired information. It should be assumed in litigation that despite the diligent efforts of counsel, information will emerge that will require changes to an expert report. New information may impact the expert’s opinions on “the basis and reasons” for those opinions. A supplementary report may be induced by the disclosure of new information in the discovery process, further study or reflection by the expert, or a comment or opinion stated in an adversary’s expert report.

e. Frequently, an expert will want to qualify or refine his own analysis based on an alleged analytical flaw in his approach described in an adversary’s report. A vaguely written conclusion or mathematical error should be clarified or corrected before an adversary can use it to discredit your expert. If a Daubert challenge is anticipated, a formal supplemental report under Fed. R. Civ. P. 26 (e) may be the best way to respond to changes in the report. For example, the expert could prepare an errata sheet with the changes and supplements or, alternatively, an entirely new, fully integrated report could be issued. In deciding how to proceed, you should remember you want to make the expert’s opinion easily accessible to the trier of fact. A less than a fully integrated supplemental report might require the judge or jury to sift through the original report, errata sheets, amendments and deposition transcripts to fully understand the expert’s position.

f. While the literal language of the disclosure requirements is rarely enforced, a number of courts have reacted harshly to reports perceived to be insufficiently detailed. See, e.g., Smith v. State Farm Fire and Cas. Co., 164 F.R.D. 49, 53-54 (S.D. W.Va. 1995) (“preliminary report” expressing opinions in vague terms, referring to large amounts of documents as the basis of opinions, and providing no exhibits was inadequate).

g. Within the zone of maneuverability, tactical considerations should inform your decisions about what level of detail to include.

i. A more elaborate report may be appropriate if your aim is to improve your settlement posture.

ii. More detail may also be helpful if you intend to refer to the report in pre-trial motion practice.

iii. Absent such considerations, you may wish to avoid detail that would unnecessarily educate the other side, or reduce your expert’s flexibility in the future.

8. Use Flexibility In Drafting an Expert Report: Always explicitly build-in flexibility. An expert can and should note that his opinions are based on analysis done to date, and

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that future analysis and/or data coming to light could alter these conclusions. Where appropriate, the expert should also state that he may respond to opinions and information presented by the adversary’s experts.

9. The Detailed Expert Reports Required by Daubert Invite Depositions: The detailed expert reports required after Daubert invite depositions. While it was the hope of the Advisory Committee, as expressed in the notes to Fed. R. Civ. P. 26, that more detailed expert reports would limit the need for depositions, the opposite has been true. Because Fed. R. Civ. P. 26(b)(4)(A) specifically provides: “A party may depose any person who has been identified as an expert whose opinions may be presented at trial,” motions seeking a protective order prohibiting a party from deposing an adversary’s expert on the ground that the report is complete are unlikely to succeed.

VIII. ATTACKING YOUR ADVERSARY’S EXPERT

1. In Daubert, the Supreme Court stated that experts must meet “exacting standards of reliability.” Suppose expert report served by your adversary fails to meet that exacting standard, what can you do?

2. If expert testimony is vital to your case, in the Rule 16 Conference, you might consider asking the court to set a schedule for in limine motions to strike expert testimony. This may be necessary to avoid last minute surprises since there is nothing in the Federal Rule of Civil Procedure established when in limine motions may be made.

3. If the motions will be made in limine, the pre-trial order could specify each portion of the expert report the movant intends to challenge and can even require the movant to quote the language he intends to challenge and the legal and factual basis for the challenge and the evidence on which he intends to rely in making the challenge.

4. In moving to strike either in limine or during any other time in the case pursuant to Rule 104(a) of the Federal Rules of Evidence, you might request a Daubert hearing to examine the witness to educate the court, to increase the non-moving parties expense, to evaluate the importance of the motion and to test cross-examination outside the presence of the jury. The Supreme Court in Kumho Tire clearly stated that it was in the discretion of the trial court to hold a Daubert suppression hearing depending on the novelty of the issues.

5. Evidentiary objections are covered by Fed. R. Evid. 103, which states: "Error may not be predicated" upon rulings admitting evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection." Remember the Advisory Committee Notes to Rule 103 state that the reason for requiring the objecting

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party to state the grounds for objection include: "enabl[ing] opposing counsel to take proper corrective measures."

6. In other words, you must be specific in your objection. A motion to strike an expert report must identify the specific testimony challenged, state the basis for the objection with sufficient particularity to permit a response, and set forth all relief sought.

7. Another strategy may be to serve a Daubert motion in conjunction with a Fed. R. Civ. P. 56 motion for summary judgment. Under Fed. R. Civ. P. 56, the standards are quite clear and the court must deny summary judgment if there is a material issue of fact that must be resolved by the trier of fact. On Daubert issues, however a district court enjoys wider latitude. If the material issue can be characterized as a Daubert issue, and if the court concludes that one of the opinions fails to satisfy Daubert, the court, in its discretion, can exclude that evidence. Without the evidence, a party may not be able to defend the motion. Therefore, in motions for summary judgment based on the alleged inadequacy of expert testimony, these colliding standards are a constant source of trouble. A particularly difficult area under Daubert is “fit.” Some decisions treat “fit” as a more stringent variant of relevance. Under this controversial view of "fit," even reliable evidence that concededly satisfies the liberal standard embodied in Fed. R. Evid. 401 could be excluded.

8. In opposing a motion for summary judgment based on unalleged inadequacy of an expert report, do not forget to consider opposing the motion by submitting a supplemental expert report to modify a previously stated opinion. The reason supplementation may be necessary is because only evidence admissible at trial may be considered on a motion for summary judgment, and only non-employee expert opinions reflected in reports (as supplemented from time to time) may be admitted at trial. Supplementation is especially useful where to defeat summary judgment, the expert merely needs to clarify something already in the expert report that may not be as explicit as the expert originally imagined.

IX. DON’T LET DAUBERT BLIND YOU TO OTHER WAYS OF ATTACKING YOUR ADVERSARY’S SCIENTIFIC EVIDENCE.

At the outset of this outline, you learned that Frye excluded polygraph testimony and that Daubert has succeeded Frye. So, one might conclude that polygraph evidence is therefore excluded on Daubert. However, rather than engaging in complicated and time consuming hearing applying the standards elucidated by the Supreme Court in Daubert, many courts have excluded polygraph evidence on the ground that its prejudicial effect far outweighs its probative value under Rule 403 of the Federal Rules of Evidence. Fed. R. Evid. 403 provides that otherwise admissible evidence may be excluded if its probative value is substantially outweighed by the danger of misleading the jury. Daubert and Fed. R. Evid. 702 may be the leading, but they are not the exclusive method of attacking with expert scientific testimony.

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X. TRIAL

By the time of trial, the expert's report has been filed, a deposition of the expert has been taken, and any motions in limine resolved. There should be no real surprises at trial. Admissibility has been resolved. The weight of the evidence is all that remains to be argued. Counsel must now content himself with cross-examination. If you have diligently followed the procedures outlined in this summary, there should be plenty of material for cross at your disposal.

XI. APPEALS

While the Court of Appeals normally engages in a de novo review of a motion granting summary judgment, the Court of Appeals applies only an abuse of discretion standard with respect to Daubert issues (See General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997). Therefore, appeals based on the denial or granting of Daubert motions are usually not successful. Daubert appeals are particularly difficult, because it often takes enormous space in a brief to explain in-depth why the Court erred. On appeal, it is often best to try to completely recapitulate the expert's opinion and trace the torturous course of the proceedings involving the report, as it is too easy to lose the Court. It is often wisest just to write enough to get the panel interested in the appeal. This can be accomplished by limiting your brief to only your best arguments, providing only a roadmap to affirmance or reversal and, thereafter, relying on the carefully reasoned expert report to carry your appeal.

XII. SELECT CASES OF NOTE

Securities

A Ph. D’s expert report regarding securities fraud claims against certain national securities exchange specialist firms was admissible. In re NYSE Specialists Sec. Litig., 260 F.R.D. 55 (S.D.N.Y. 2009)

However, the Government's materiality expert on stock price drop evidence was limited for lack of “fit.” United States v. Schiff, 602 F.3d 152, 177 (3d Cir. 2010)

Patent Cases

Several types of experts were discussed in Oxford Gene Tech. Ltd. v. Mergen Ltd., 345 F. Supp. 2d 431 (D. Del. 2004). An expert report regarding patent invalidity was mostly inadmissible; a damages expert report was admissible with respect to the royalty owed; an expert opinion by a lawyer regarding corporate behavior i.e. willfulness of patent infringement was admissible.

However, with respect to royalties owed in another patent infringement case, an expert report was inadmissible where it was based on consent decrees, settlements and licenses made under

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the threat of litigation. Spreadsheet Automation Corp. v. Microsoft Corp., 587 F. Supp. 2d 794 (E.D. Tex. 2007)

An infringement expert was precluded from testifying on subjects outside scope of his deposition and report in response to the non-infringement report of a competitors' expert, due to patentee's failure to supplement its prior discovery responses or advise competitors in writing of its expert's additional opinions. Inline Connection Corp. v. AOL Time Warner Inc., 472 F. Supp. 2d 604 (D. Del. 2007)

Legal Conclusions

Expert reports regarding the standard of care owed to employee benefit plan participants by a fiduciary was admitted where they were challenged as inadmissible legal conclusions. Harris v. Koenig, CIV.A. 02-618 GK, 2011 WL 1838483 (D.D.C. May 16, 2011).

Similarly, certain expert testimony was admitted and some was precluded with respect to surety/underwriting law. In re Commercial Money Ctr., Inc., 737 F. Supp. 2d 815, 825 (N.D. Ohio 2010).

A legal malpractice expert report was not admitted, even where purported expert may have been qualified. D & D Associates, Inc. v. Bd. of Educ. of N. Plainfield, 411 F. Supp. 2d 483, 485 (D.N.J. 2006) aff'd, CIV.A. 03-1026 (MLC), 2006 WL 755984 (D.N.J. Mar. 20, 2006).

Negligent Design

An expert report pertaining to the alleged negligent defective design of an automatic garage door was admitted to defeat summary judgment where proffered expert was an automatic door installer, technician and repair person. Jensen v. Hy-Vee, Corp., CIV. 09-4057-KES, 2011 WL 1832997 (D.S.D. May 13, 2011). However, an automatic sliding door expert report was admitted with regards to whether defendant properly maintained its door system but for no other purpose. Hoganson v. Menard, Inc., 567 F. Supp. 2d 985, 991 (W.D. Mich. 2008).

An expert report pertaining to the alleged defective design of a truck was not admitted under where the proffered expert did not conduct tests or calculate any relevant facts and merely relied on his own “intuition.” Oddi v. Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000).

Conversely, a district court's exclusion of expert testimony was an abuse of discretion where a forensic engineer’s background was sufficient to testify as to the defective design of a nail gun. Lauzon v. Senco Products, Inc., 270 F.3d 681, 696 (8th Cir. 2001).

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General Products Liability An expert report on general causation was admitted for certain purposes and precluded for others. A thorough analysis is presented in the opinion. In re Phenylpropanolamine (PPA) Products Liab. Litig., 289 F. Supp. 2d 1230, 1234 (W.D. Wash. 2003). In products liability action, a kinematic analysis was admissible with regards to a specialized backpack used for breathing apparatus by paramedic/firefighter. Principi v. Survivair, Inc., 231 F.R.D. 685 (M.D. Fla. 2005)

A computational fluid dynamics expert report was admitted even where science was “challenging.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1335 (11th Cir. 2003)

An expert report regarding an alleged automobile gear-shifting defect was admissible except for the metallurgical analysis of allegedly defective component. Fullerton v. Gen. Motors Corp., 408 F. Supp. 2d 51 (D. Me. 2006)

An engineer’s expert report was admitted as to functionality of cigarette lighter, but no as to child color preference. Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 80 (S.D.N.Y. 2001)

Pharmaceutical Products/Medical Liability

With respect to a former gasoline tanker truck driver’s claim that his leukemia was caused by benzene exposure, general and specific causation expert reports of doctors were excluded where the categories of evidence relied on i.e. animal studies, differential diagnosis, and epidemiological studies were insufficient. Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1157 (E.D. Wash. 2009).

Similarly, an expert report that plaintiff's post-partum ingestion of the drug Parlodel caused her to suffer hemorrhaging was not sufficiently reliable to be admissible under Daubert absent scientific evidence indicating that the drug could cause said hemorrhaging. Glastetter v. Novartis Pharmaceuticals Corp., 107 F. Supp. 2d 1015 (E.D. Mo. 2000) aff'd, 252 F.3d 986 (8th Cir. 2001).

A Pharmacology expert’s report stating that a weight-loss supplement containing ephedrine and caffeine caused vasospasm and vasculitis, which in turn caused strokes and heart attacks and that adding caffeine made it more toxic, was insufficiently reliable to be admissible under Daubert to show general causation in toxic tort action. McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005).

Similarly, the exclusion of a neuropsychopharmocologist's expert opinion that use of Zoloft, an antidepressant medication, caused 13-year-old boy to commit suicide, was warranted, under

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Daubert, in a products liability action. Miller v. Pfizer, Inc., 356 F.3d 1326 (10th Cir. 2004). See also Guinn v. AstraZeneca Pharmaceuticals LP, 602 F.3d 1245, 1248 (11th Cir. 2010).

Expert opinions of three doctors were inadmissible in a products liability (failure to warn) action where plaintiff claimed that a certain dopamine caused compulsive gambling. Wells v. SmithKline Beecham Corp., 601 F.3d 375 (5th Cir. 2010). Similarly, an expert report regarding a certain drug’s linkage to strokes was excluded where the expert’s “testimony is based more on personal opinion than on scientific knowledge.” Siharath v. Sandoz Pharmaceuticals Corp., 131 F. Supp. 2d 1347, 1373 (N.D. Ga. 2001) aff'd sub nom. Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194 (11th Cir. 2002) citing Allison v. McGhan Med. Corp., 184 F.3d 1300, 1319 (11th Cir.1999). Price Fixing Plaintiff’s and defendant’s expert reports regarding, amongst other things, damages, were admissible in a breach of contract action regarding wholesale gasoline prices set by corporation. Allapattah Services, Inc. v. Exxon Corp., 61 F. Supp. 2d 1335, 1336 (S.D. Fla. 1999) aff'd, 333 F.3d 1248 (11th Cir. 2003) aff'd sub nom. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005).

Real Estate/Real Property/ Environmental Law

Certain real estate appraisal expert reports were admitted and others were precluded. A thorough analysis is provided by the Court. Cayuga Indian Nation of New York v. Pataki, 83 F. Supp. 2d 318, 328 (N.D.N.Y. 2000).

In a class action for diminished property value and nuisance against a federal weapons production facility that produced, amongst other things, plutonium and uranium, a reconstruction expert, epidemiologist, ecologist, geography, real estate appraiser and nuclear physicist’s expert reports were admissible. However, z historian’s testimony about the Cold War armament race ran the risk of unfair prejudice and real property appraisers and real estate agent testimony was irrelevant or otherwise inadmissible. Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071 (D. Colo. 2006).

A professional land surveyor’s expert testimony was admissible and a professional engineer could provide expert testimony in a government takings case. Valley View Dev., Inc. v. U.S. ex rel. U.S. Army Corps of Engineers, 721 F. Supp. 2d 1024 (N.D. Okla. 2010). As opposed to Cook, a new trial was ordered where admission of expert reports, including a geologist and medical experts, regarding contamination from uranium mill was not harmless error. Dodge v. Cotter Corp., 328 F.3d 1212, 1229 (10th Cir. 2003).

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Accounting

Accountant expert reports are generally admitted. Smolow v. Hafer, 513 F. Supp. 2d 418 (E.D. Pa. 2007).

However, all accountant expert reports are not admissible. A thorough analysis is provided by the court. Loeffel Steel Products, Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 802 (N.D. Ill. 2005)

Election Law

Admitting two and precluding one expert reports relating to election law, specifically ballot position. Koppell v. New York State Bd. of Elections, 97 F. Supp. 2d 477, 480 (S.D.N.Y. 2000)

Other Selected Recent Cases

Canine tracking and nitrate detection expert report admitted. United States v. Graham, 08-CR-6259L, 2011 WL 1885343 (W.D.N.Y. May 18, 2011).

Technical investigator’s report regarding water damage admitted even where investigator was not a licensed professional engineer. Yellin v. Robertshaw Controls Co., CIV. 09-3161 SRN/JJG, 2011 WL 1877822 (D. Minn. May 17, 2011).

Fire origin expert report admitted as to origin of fire but not as to causation. Hartford Ins. Co. v. Gen. Elec. Co., 526 F. Supp. 2d 250 (D.R.I. 2007).

Thomas V. Marino Partner

Thomas V. Marino is a member of DBM's litigation and arbitration practice group. Mr. Marino concentrates on a wide variety of complex, multi-party business and securities litigation in both state and federal courts and in arbitration throughout the United States. Mr. Marino also focuses on First Amendment litigation particularly in the areas of defamation, and has to his credit landmark cases including landmark decisions from the U.S. Supreme Court in Keeton v. Hustler and Falwell v. Flynt. Mr. Marino’s clients have included: an aircraft component manufacturer, semi-conductor engineering and design firm, large real estate developer, publishing companies, registered representative, real estate brokers, securities firms, law firms, art galleries, commodities trading firms, gold lending firms, banks, insurance firms, closing manufacturers and imports, oil trading firms, and numerous other businesses and individuals.

Memberships and Affiliations: Board of Directors New York County Lawyers' Association 2005-2009; Chair of the Committee on the Federal Courts 2006-2009; New York State Supreme Court Committee; Task Force on Selection and Election of New York State Judges 2005-present. Continuing Legal Education Lectures for New York County Lawyers Association. Between 1972 - 1977, Mr. Marino served with the U.S. Army's 5th Special Forces Group (Airborne)(the "Green Berets") where he achieved the rank of Captain and served in numerous overseas assignments

Publications: Report on Policies Regarding Cell Phones, Laptops, PDA’s and Other Electronic Devices in the United States Courthouse for the Southern District of New York, July 2009; Report on Proposed Arbitration Fairness Act of 2007, 249 FRD 402 (2008); Report on Administrative Law Judge Reform (New York County Lawyers' Association, September 26, 2006) (published at www.nycla.org reports); Commentary on the Proposal to Establish a New York City Coordinator of Administrative Justice (New York County Lawyers' Association May 9, 2005) (published at www.nycla.org reports); Report on the Reaffirmation of American Independence Resolutions, U. S. House Resolution 97 and Senate Resolution 92 (New York County Lawyers' Association April 14, 2005)(published at www.nycla.org reports); Co-Author of an award winning study of the practice of allowing lawyers admitted in one jurisdiction to practice in another (169 F.R.D. 390).

Speaking Engagements: Chair, Forum on Recent Changes to Federal Rules of Civil Procedure Regarding Electronically Secured Information, November 8, 2006, New York County Lawyers' Association; Introductory Speaker, Luncheon Honoring Federal Courts in New York City, October 15, 2006; Chair, Forum: Updates on Changes to Judicial Selection for New York State Judges, November 29, 2004, New York County Lawyers' Association; Vice-Chair, Luncheon Honoring Federal Courts in New York City, October 16, 2003; Chair Luncheon Honoring Federal Courts in New York City, October 14, 2004; Lecturer, Annual CLE Program: Winning Cases in Federal Court 2001-present, New York County Lawyers' Association 1999-2009; Privileges in Civil and Criminal Litigation, City Bar Center for Continuing Legal Education, January 13, 2003.

Bar Admissions: New York (1982); U.S. Supreme Court (1987); U.S. Court of Appeals, First, Second, Tenth and District of Columbia Circuits (1990); U.S. District Courts for the Southern and Eastern Districts of New York (1984);

Education: C.W. Post College (B.A. 1971 summa cum laude); St. John's University School of Law (J.D. 1981).

http://dunnington.com/litigation.html

http://dunnington.com/www.nycla.org



Faculty Biographies

ARTHUR H. AUFSES III

Partner

[email protected] 212.715.9234 212.715.8234 New York

Overview

Arthur Aufses is a commercial litigator who often defends securities and class action lawsuits, conducts internal corporate investigations into accounting and related issues, and counsels corporate officers, directors, and financial advisors on securities and other potential liabilities.

Mr. Aufses’ recent representations include defending publicly traded companies in securities class action lawsuits and related regulatory investigations; defending corporate officers and directors in securities litigation, including the defense of the former president and chief executive officer of a software company specializing in practice management software products for physician practices against class action and other claims; representing the independent trustees of mutual funds in regulatory investigations and class action and derivative litigation; counseling the outside directors and audit committee members of a telecommunications and internet services provider through class action litigation and regulatory inquiries; recovering a multi-million dollar transaction fee for an investment bank; and resolving for a mortgage provider a series of nationwide class actions that challenged the validity of the company’s mortgage servicing practices.

News

Events

PAST EVENTS

DATE TITLE

June 4, 2009 Kramer Levin Represents GM Unsecured Creditors

DATE TITLE

May 5, 2008 Law Seminars International: Damages in Securities Litigation Workshop

RELATED PRACTICES

Litigation

Alternative Dispute Resolution

Appellate and Constitutional Litigation

Accountants' Liability

Madoff Task Force

Commercial Litigation

Securities and Shareholder Litigation

EDUCATION

BAR ADMISSIONS

COURT ADMISSIONS

- J.D., cum laude, Harvard Law School, 1980

- B. Phil., Oxford University, England, 1975

- B.A., magna cum laude, Yale University, 1973

- New York, 1981

- U.S. Court of Appeals, Second Circuit, 1996

- U.S. Tax Court, 1993

- U.S. Court of Appeals for the Fifth Circuit, 1987

- U.S. Court of Appeals, Third Circuit, 1981

Publications/Press

June 19, 2007 ACC Israel Annual Conference

May 7, 2007 Law Seminars International: Estimating Damages in Securities Litigation

June 5, 2006 Law Seminars International: Estimating Damages in Securities Litigation

June 6, 2005 Estimating Damages in Securities Litigation - Law Seminars International Workshop

May 14, 2003 Aufses Discusses Federal Civil Procedure at Upcoming N.Y. County Lawyers Association Event

DATE TITLE

June 6, 2011 Securities Enforcement & White Collar Litigation Alert: SEC Adopts Final Rule Implementing Dodd-Frank Whistleblower Program

December 2010 The Metropolitan Corporate Counsel: SEC Proposes Rules to Implement Dodd-Frank Whistleblower Program

November 8, 2010 Securities & White Collar Litigation Alert: SEC Proposes Rules To Implement Dodd-Frank Whistleblower Program

September 29, 2010 Securities Enforcement Alert: Fifth Circuit Reinstates Insider Trading Claims Against Mark Cuban

July 15, 2010 Securities Litigation Alert: Supreme Court Grants Certiorari in Mutual Fund Market Timing Case

July 7, 2010 Securities Litigation Alert: Supreme Court Closes Door to Foreign-Cubed Securities Lawsuits in U.S. Courts

June 2, 2010 Securities Litigation Alert: Second Circuit Holds That PSLRA’s Safe Harbor Provisions Shield American Express from Liability

CLERKSHIPS

PROFESSIONAL AFFILIATIONS

OTHER ACTIVITIES

Teaching

- Judge José A. Cabranes, U.S. District Court, District of Connecticut, 1981 - 1982

New York City Bar Association, Member, Committee on Federal Legislation, 1984-1987;Secretary, Committee on Legal Assistance, 1982-1984

-

American Bar Association -

New York County Lawyers Association, Member, Federal Courts Committee, 1990-present

-

National Institute of Trial Advocacy-

New York City BarAssociation-

Cardozo Law School-

March 26, 2010 Securities Litigation Alert: First Circuit En Banc Rejects 10b-5 Theory of Primary Liability for Securities Professionals Based on "Implied Statements"

December 8, 2009 Securities Litigation Update: Supreme Court Grants Certiorari in “Foreign-Cubed” Securities Case

August 12, 2009 Securities Enforcement Alert: Texas District Court Dismisses Insider Trading Charges Against Mark Cuban and Holds That Misappropriation Theory Requires Duty Not to Trade

July 15, 2009 Securities Litigation Alert: Eleventh Circuit Affirms Bar Order, in Connection with Partial Settlement of Class Action, Extinguishing Non-Settling Former CEO Defendant's Contractual Rights to Advancement of Defense Costs and Indemnification

June 5, 2009 Securities Litigation Alert: Fourth Circuit Holds That Investment Adviser and Public Company Parent May Face Federal Securities Law Liability for False Statements in Mutual Fund’s Prospectus; Discusses Test for Attribution Requirement

June 1, 2009 Securities Litigation Alert: Third Circuit Reiterates Standards to Evaluate the Use of Confidential Informants Post-Tellabs; Court Finds Motive and Opportunity No Longer Sufficient in Alleging Scienter

February 9, 2009 Securities Litigation Alert: Third Circuit Holds That Under SLUSA the Presence of Some Preempted State Claims Does Not Require Dismissal of an Entire Class Action - In re Lord Abbett Mutual Funds Fee Litigation

January 21, 2009 Securities Litigation Alert: First Circuit Holds That Underwriters May Face Liability Under Rule 10b-5 For False Statements In Issuer’s Prospectus; Discusses Expansive View Of Rule 17(a)(2) Liability

December 2008 Securities Litigation Alert: Ninth Circuit Holds That Representations in a Merger Agreement May Support Securities Fraud Action When That Agreement Is Filed As an Exhibit to

Awards/Honors

Securities Filings; Discusses Possible "Collective Scienter" Argument

November 10, 2008 Securities Litigation Alert: The Second Circuit Court of Appeals Declines the Invitation to Establish a Bright-Line Rule Barring Foreign-Cubed Securities Lawsuits

January 28, 2008 Litigation Alert: Supreme Court Affirms Stoneridge and Rejects Expansion of Securities Fraud Liability to Secondary Actors under a Scheme to Defraud Theory

January 14, 2008 Litigation Alert: When a Special Committee of a Corporation's Board of Directors Discloses the Findings of an Internal Investigation to the Full Board of Directors, the Special Committee May Find That It Has Waived Its Attorney-Client Privilege with Committee Counsel

February 22, 2000 Aufses, Friedman, and Sheldon Write Article for Special Litigation Section of New York Law Journal

DATE TITLE

October 20, 2010 13 Kramer Levin Attorneys Named to AVENUE’s Legal Elite

September 27, 2010 Kramer Levin Has More "Top 10" and "Top 100” Attorneys On the 2010 New York Super Lawyers List Than Any Other Firm; Overall Firm Lands 58 Attorneys on the List

October 5, 2009 Kramer Levin Lands 53 Lawyers on the New York Super Lawyers List and Six in the Survey's "Top 100” - No Firm Has More "Top 100" Lawyers

September 29, 2008 54 Kramer Levin Attorneys Recognized in Third Annual New York Super Lawyers, Three in Top 100, and Naftalis Receives Top Point Getter Status for all NY Metro Area

July 31, 2007 54 Kramer Levin Attorneys Recognized in Second Annual New York Super Lawyers

July 18, 2006 42 Kramer Levin Attorneys Nominated to Appear in First Edition of New York Super Lawyers, Four in Top 100

NEW YORK & PARIS

ALL RIGHTS RESERVED. ATTORNEY ADVERTISING. PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME.

© 2011 KRAMER LEVIN NAFTALIS & FRANKEL LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP

cahill.com | New York | Washington D.C. | London

Susan BuckleyPARTNER

212.701.3862 Phone 212.378.2166 Fax [email protected]

Cahill Gordon & Reindel LLP Eighty Pine Street New York, NY 10005-1702

Practices:Intellectual PropertyLitigationMedia

Education:Mount Holyoke College, B.A., 1973Fordham University School of Law, J.D.,1977

Bar Admission:New York

Susan has extensive experience litigating communications law matters,especially those involving the rights of the press. During the course of hercareer, she has successfully represented journalists and media entities incases concerning a wide variety of issues affecting the media, includingthe prior restraint doctrine, press access issues, the reporter’s privilegeand the protection of confidential sources and has defended journalistsand media clients in defamation and privacy cases, copyright matters andlitigation challenging governmental efforts to restrict newsgatheringactivities.

Her clients have included the four major broadcast networks, The NewYork Times, Time Inc., HBO, the Hearst Corporation, Business Week,CNN, Court TV, NY1, local broadcasters, motion picture distributors,music distributors, cable program suppliers and other publishers ofnewspapers and magazines.

Susan is named among the top litigators in New York by Chambers USA,The Legal 500 and Euromoney's Benchmark Litigation.

SELECTED MATTERS:

Successfully represented national news organizations in numerouslitigations challenging state efforts to restrict newsgatheringactivities at polling places on election days (e.g., AmericanBroadcasting Companies, Inc. v. Blackwell).Represented Senator Mitch McConnell and the NationalAssociation of Broadcasters in a First Amendment-rootedchallenge to the constitutionality of the Bipartisan CampaignReform Act (McConnell v. Federal Election Commission).Represented the Brooklyn Museum in its dispute with the City ofNew York and Mayor Rudolph Giuliani over the Museum's right todisplay controversial, contemporary art (Brooklyn Institute of Artsand Science v. City of New York).Won reversal of a $10 million jury verdict in a defamation andprivacy action concerning a “20/20” investigative report (Levan v.Capital Cities, Inc.).Represented The New York Times in its effort to preclude thegovernment from subpoenaing records from telephone companiesthat would reveal reporters’ confidential sources (New York TimesCo. v. Gonzales).Obtained dismissal at the summary judgment stage of a multi-million dollar defamation action attacking a “Primetime Live”investigative report on questionable practices of televangelists(Tilton v. Capital Cities, Inc.).




mailto:[email protected]

Represented Judith Miller and Matthew Cooper in opposing thegovernment's demand that they reveal confidential sources inconnection with a criminal investigation into the leak of a CIAagent’s identity (Miller v. United States).Obtained dismissal of claims in a wrongful death action premisedon the theory that the children who committed the crime weredriven to do so by exposure to music advocating criminal behavior(Pahler v. Slayer).

PROFESSIONAL ACTIVITIES:Susan’s article addressing the application of the Espionage Act tojournalistic activities, “Reporting on the War on Terror: The EspionageAct and Other Scary Statutes,” was recently published by the Media LawResource Center.Susan is a member of the Governing Board of the ABA’s Forum onCommunications Law and serves as a Master for the Federal Bar CouncilAmerican Inn of Court. She has served on the Communications and MediaLaw Committee of the Association of the Bar of the City of New York andthe Media Law Committee of the New York State Bar Association.

Susan joined Cahill in 1977, following her graduation from FordhamUniversity School of Law, where she served as an Editor of the FordhamLaw Review. She became a partner in 1985.


New York P: (212) 837-6856 F: (212) 299-6856

[email protected]

Areas of Concentration

■ Litigation, including products liability and general commercial litigation with experience in state and federal courts, arbitrations and Congressional and Department of Justice investigations.

■ Electronic discovery and information management in litigation and non-litigation settings.

Awards and Recognitions

■ Ranked by Chambers USA as one of the top Products Liability lawyers in the United States (2009, 2010, 2011)

■ Ranked by Euromoney's Guide as one of The World's Leading Product Liability Lawyers

■ Recognized and listed in The International Who's Who of Product Liability Defence Lawyers and The International Who's Who of Business Lawyers (2011)

Professional Activities

Current

■ Chair, New Jersey Defense Association Products Liability Committee

■ Member, Defense Research Institute (DRI) E-Discovery Committee

■ Member, Lawyers for Civil Justice E-Discovery Committee

Prior

■ Association of the Bar of the City of New York Special

Practice Areas Litigation eDiscovery Product Liability & Toxic Torts

Education Information Brooklyn College, B.A., 1992, magna

cum laude, Phi Beta Kappa Georgetown University Law Center,

J.D., 1995, cum laude

Bar Admissions New York, 1996 District of Columbia, 1997 New Jersey, 2004

Committee to Encourage Judicial Service (Secretary 9/2000 to 12/2006)

■ New York County Lawyers’ Association Trade Regulation Committee (Vice-Chair 9/1997 to 6/2000)

Court Admissions

■ United States Supreme Court

■ United States Court of Appeals for the Second Circuit

■ United States Court of Appeals for the Tenth Circuit

■ United States District Court for the District of New Jersey

■ United States District Court for the Eastern District of New York

■ United States District Court for the Northern District of New York

■ United States District Court for the Southern District of New York

Highlighted Matters

Selected Decisions

■ In re: Vioxx Litigation, 395 N.J.Super. 358, 928 A.2d 935 (App. Div. 2007) (affirming dismissal for forum non conveniens of cases brought against client by residents of England and Wales).

■ Hemingway v. New York City Health and Hospitals Corp. and New York Blood Center, Inc., 13 A.D.3d 484, 787 N.Y.S.2d 86 (App. Div., 2nd Dep’t. 2004) (affirming summary judgment in favor of client).

Selected Matters

■ Representation of a major pharmaceutical company in national and international class action and individual personal injury litigation.

■ Representation of a major blood center in numerous cases involving alleged virus-contaminated blood transfusions as well as patent licensing disputes.

■ Representation of a major medical device manufacturer in patent-antitrust cases

■ Representation of a major music licensing organization in various antitrust matters and in commercial litigation.


2

■ Representation of a major insurance company in insurance coverage matters involving silicone-gel breast implants and tobacco.

Highlighted Publications

Publications

■ Zubulake Revisted: Six Years Later, Law 360, January 15, 2010 (http://securities.law360.com/articles/143679) (co-author)

■ Products Liability 2008: A Year in Review (American Bar Association Section of Litigation web publication) (co-author)

■ Intellectual Property Misuse: Licensing and Litigation (American Bar Association Section of Antitrust Law 2000) (co-author and member of Editing Committee)

■ Intellectual Property Law Annual 1997, 1998, 1999, 2000, and 2001 (New York Intellectual Property Law Association) (co-author of “Antitrust and Misuse Law” chapter)

Lectures

■ “The Expanding Role of Search in E-Discovery,” Webinar, May 23, 2011

■ “Data Protection,” International Bar Association Conference, Krakow, Poland, May 20, 2010 “Watson, The NY Times Doomsday Article and the Legal Profession,” ESIBytes Podcast, April 1, 2011 (available at www.esibytes.com/?p=1829)

■ “What Lawyers Need to Know About Search,” Catalyst Secure’s “The Expanding Role of Search in E-Discovery” Seminar, New York, New York, March 2, 2011

■ “Legacy Data Issues and E-Discovery Pain,” ESIBytes Podcast, January 18, 2011 (available at www.esibytes.com/?p=1601)

■ “A Focus on Class Actions and MDL: Coordination and Other Winning Strategies for Resolution in Multiple Jurisdictions,” American Conference Institute “Mass Tort Products Liability Claims” Program, New York, New York, September 30, 2010

■ “Electronic Discovery,” New York County Lawyers’ Association seminar, “Winning Cases in Federal Court,” New York, New York, July 7, 2010

■ “Management of Complex Litigation,” International Bar Association Conference, Washington, D.C., April 15, 2010

■ “e-Discovery Case Law Update - Winter/Spring 2010,” Fios Inc. Webcast, March 24, 2010


3

■ “Privilege in the Electronic Age,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, March, 2010

■ “Mass Torts: The Defense Perspective,” New York State Trial Lawyers Institute CLE Seminar, “How to Find, Understand, and Litigate Mass Torts,” New York, New York, May 7, 2009

■ “Multilingual Madness: Globalization is Colliding with the Complexity of E-Discovery,” Legal Tech, New York, New York, February 3, 2009

■ “Products Liability 2008: A Year In Review,” American Bar Association, Joint Meeting of the Products Liability, Mass Tort, and Environmental Law Committees, Vail, Colorado, January, 2009

■ “We’re All in This Together: Coordination with Your Outside Counsel Is Essential to Successful E-Discovery,” Corporate Counsel Seminar “Mastering the Discovery Process for the General Counsel,” New York, New York, November, 2008

■ “The Ups and Downs of Removal and Remand,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Data Overload: Effectively Dealing with Information Preservation and Discovery,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Qualcomm v. Broadcom: What Lessons Have We Learned?,” Association of Litigation Support Professionals, Webinar, May, 2008

■ “Discovery of Foreign Language Documents,” Catalyst Secure Seminar, New York, New York, December, 2007

■ “Managing Multiple Litigations and Class Actions,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Somerset, New Jersey, October, 2007

■ “Developing Winning Litigation Strategies Under the New E-Discovery Rules,” New York City Bar Association, New York, New York, June, 2007

■ “Use of Technology at Trial,” Atlantic City Inns of Court, Atlantic City, New Jersey, March, 2007

■ “Electronic Discovery,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, October, 2005


4

No aspect of this communication has been approved by the Supreme Court of New Jersey. For information regarding theselection process for honors or accolades referred to above, please visit www.hugheshubbard.com/awardmethodology.

Honorable Victor Marrero

Honorable Victor Marrero is a senior judge for the United States District Court for the Southern District of New York. He joined the court in 1999 after being nominated by President Bill Clinton. Marrero assumed senior status on December 31, 2010. Judge Marrero graduated from New York University with his Bachelor's Degree in 1964 and later graduated from Yale Law with his Bachelor of Law's degree.

Judge Marrero began his legal career as a Assistant to former New York City Mayor John V. Lindsay from 1968 to 1970 then became an Assistant administrator/neighborhood director for Model Cities Admin representing New York City from 1970 to 1973, before becoming the Executive director for the New York City Department of City Planning from 1973 to 1974. Judge Marrero later became Special Counsel to the Comptroller of New York City and then became the first Assistant Counsel to the New York State Governor Hugh Carey from 1975 to 1976. Subsequently, Judge Marrero moved back to New York City to become Chairman of the New York City Planning Commission. In 1978, Judge Marrero became Commissioner and Vice Chairman of the New York State Housing Finance Agency from 1978 to 1979 before becoming the U.S. Undersecretary of Housing and Urban Development from 1979 to 1981. Judge Marrero later entered private practice in New York City and subsequently became U.S. Ambassador on the Economic and Social Council of the United Nations from 1993 to 1997. After holding that position, Judge Marrero was nominated by President Bill Clinton as U.S. Ambassador/Permanent Representative of the United States to the Organization of American States from 1998 to 1999.

http://judgepedia.org/index.php/Senior_judge

http://judgepedia.org/index.php/United_States_District_Court_for_the_Southern_District_of_New_York

http://judgepedia.org/index.php/United_States_District_Court_for_the_Southern_District_of_New_York

http://judgepedia.org/index.php/Federal_judges_nominated_by_Bill_Clinton

http://judgepedia.org/index.php/Senior_status

http://judgepedia.org/index.php/C2010#December

http://en.wikipedia.org/wiki/New_York_University

http://en.wikipedia.org/wiki/Yale_Law_School

http://en.wikipedia.org/wiki/John_V._Lindsay

http://en.wikipedia.org/wiki/John_V._Lindsay

http://en.wikipedia.org/wiki/Hugh_Carey

http://en.wikipedia.org/wiki/United_States_Department_of_Housing_and_Urban_Development

http://en.wikipedia.org/wiki/United_Nations

http://en.wikipedia.org/wiki/Organization_of_American_States

Thomas V. Marino Partner

Thomas V. Marino is a member of DBM's litigation and arbitration practice group. Mr. Marino concentrates on a wide variety of complex, multi-party business and securities litigation in both state and federal courts and in arbitration throughout the United States. Mr. Marino also focuses on First Amendment litigation particularly in the areas of defamation, and has to his credit landmark cases including landmark decisions from the U.S. Supreme Court in Keeton v. Hustler and Falwell v. Flynt. Mr. Marino’s clients have included: an aircraft component manufacturer, semi-conductor engineering and design firm, large real estate developer, publishing companies, registered representative, real estate brokers, securities firms, law firms, art galleries, commodities trading firms, gold lending firms, banks, insurance firms, closing manufacturers and imports, oil trading firms, and numerous other businesses and individuals.

Memberships and Affiliations: Board of Directors New York County Lawyers' Association 2005-2009; Chair of the Committee on the Federal Courts 2006-2009; New York State Supreme Court Committee; Task Force on Selection and Election of New York State Judges 2005-present. Continuing Legal Education Lectures for New York County Lawyers Association. Between 1972 - 1977, Mr. Marino served with the U.S. Army's 5th Special Forces Group (Airborne)(the "Green Berets") where he achieved the rank of Captain and served in numerous overseas assignments

Publications: Report on Policies Regarding Cell Phones, Laptops, PDA’s and Other Electronic Devices in the United States Courthouse for the Southern District of New York, July 2009; Report on Proposed Arbitration Fairness Act of 2007, 249 FRD 402 (2008); Report on Administrative Law Judge Reform (New York County Lawyers' Association, September 26, 2006) (published at www.nycla.org reports); Commentary on the Proposal to Establish a New York City Coordinator of Administrative Justice (New York County Lawyers' Association May 9, 2005) (published at www.nycla.org reports); Report on the Reaffirmation of American Independence Resolutions, U. S. House Resolution 97 and Senate Resolution 92 (New York County Lawyers' Association April 14, 2005)(published at www.nycla.org reports); Co-Author of an award winning study of the practice of allowing lawyers admitted in one jurisdiction to practice in another (169 F.R.D. 390).

Speaking Engagements: Chair, Forum on Recent Changes to Federal Rules of Civil Procedure Regarding Electronically Secured Information, November 8, 2006, New York County Lawyers' Association; Introductory Speaker, Luncheon Honoring Federal Courts in New York City, October 15, 2006; Chair, Forum: Updates on Changes to Judicial Selection for New York State Judges, November 29, 2004, New York County Lawyers' Association; Vice-Chair, Luncheon Honoring Federal Courts in New York City, October 16, 2003; Chair Luncheon Honoring Federal Courts in New York City, October 14, 2004; Lecturer, Annual CLE Program: Winning Cases in Federal Court 2001-present, New York County Lawyers' Association 1999-2009; Privileges in Civil and Criminal Litigation, City Bar Center for Continuing Legal Education, January 13, 2003.

Bar Admissions: New York (1982); U.S. Supreme Court (1987); U.S. Court of Appeals, First, Second, Tenth and District of Columbia Circuits (1990); U.S. District Courts for the Southern and Eastern Districts of New York (1984);

Education: C.W. Post College (B.A. 1971 summa cum laude); St. John's University School of Law (J.D. 1981).

http://dunnington.com/litigation.html




Barbara Moses Barbara Moses handles complex business disputes in state and federal courts nationwide, in arbitration, and in administrative proceedings. She has extensive experience in securities fraud and shareholder rights litigation, securities regulatory proceedings, class and derivative actions, partnership disputes, and copyright, trademark and trade secrets litigation. She also handles attorney disciplinary matters and conducts internal corporate investigations. In addition to her work at the Firm, Ms. Moses teaches a full-year, first-year course at New York University Law School. From 2006 to 2008, she served as an Adjunct Professor of Law at Seton Hall University Law School. Barbara received an A.B. magna cum laude from Dartmouth College and a J.D. cum laude from Harvard Law School. After clerking for the Honorable Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court, and serving as a litigation partner at Orrick, Herrington & Sutcliffe for twelve years, she joined Morvillo Abramowitz as a principal in 2002. Barbara’ numerous articles on securities litigation and trade secret issues include: “They Were Shocked, Shocked: The ‘Discovery’ of Analyst Conflicts on Wall Street” (70 Brooklyn L. Rev. 98, Fall 2004); “Litigation Stemming From Hiring Decisions: The Defense Perspective” (New York Law Journal, October 28, 1999); “Measures to Prevent Trade Secret Theft” (New York Law Journal, November 24, 1997); and “Securities Litigation Reformed?” (Review of Securities & Commodities Regulation, Vol. 29, No. 4, February 1997). She has appeared on ABC’s Nightline as a securities litigation expert and has been a frequent speaker at the ALI-ABA’s Broker-Dealer Regulation course, which she co-chaired from 1997 to 2006. Barbara has been listed in the New York Super Lawyers – Metro Edition every year since 2006. Barbara is a member of the American Law Institute and a director of the New York County Lawyers’ Association, where she previously served as Chair of the Federal Courts Committee. She is also a member of the American Bar Association, the New York City Bar Association, and the Securities Industry and Financial Markets Association. Barbara is admitted in New York, California, and Washington, D.C., and is admitted to practice before the Supreme Court of the United States, the Second, Ninth, and District of Columbia Circuits, and numerous federal district courts.

JOEL M. SILVERSTEIN Partner

Stern & Kilcullen

Mr. Silverstein received a B.A. from Columbia College in 1976 and a J.D. degree from the University of Pennsylvania Law School in 1980. Having practiced in New York at firms including White & Case and Weil, Gotshal & Manges, he has for the last thirteen years been a member of the Roseland, New Jersey law firm of Stern & Kilcullen, where his practice focuses on a wide variety civil litigation before federal district and appellate courts, including class actions brought under the federal Securities laws and patent, antitrust, bankruptcy, commercial, and constitutional litigation. Mr. Silverstein has been a member of the Federal Courts Committee of the New York County Lawyers’ Association since 1988. He is a member of the Association’s CLE Institute Advisory Board and has lectured on federal civil procedure at CLE programs sponsored by the Federal Courts Committee. He co-chaired this CLE program in 2002 along with the Hon. Shira Scheindlin (USDJ SDNY), and in 2003 along with the Hon. John Gleeson (USDJ EDNY) and the Hon. Steven M. Gold (EDNY USMJ). From 1995 through 2000, Mr. Silverstein chaired a Subcommittee of the Association’s Federal Courts Committee that conducted nationwide surveys of federal judges and clerks concerning alternative procedures used by some courts and judges to process dispositive motions, assessed the legality and efficacy of such procedures, and prepared a detailed report of its conclusions, which was published by West at 190 F.R.D.222, and won the Association’s 1999 Eppler Award.

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