FEDERAL CIVIL PRACTICE:

A PRIMER

Wednesday, November 13, 2013

Melville, L.I.

Thursday, November 14, 2013

Albany

Co-sponsored by the Committee on Commercial and Federal Litigation Section and the and the
Committee on Continuing Legal Education of the New York State Bar Association
 This program is offered for education purposes. The views and opinions of the faculty 
expressed during this program are those of the presenters and authors of the materials. 
Further, the statements made by the faculty during this program do not constitute legal advice. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Copyright ©2013 
All Rights Reserved 
New York State Bar Association 
ACCESSING THE ONLINE ELECTRONIC COURSE MATERIALS 
 
All program materials will be distributed exclusively online in searchable PDF format, allowing attendees 
more flexibility in storing this information and allowing you to copy and paste relevant portions of the 
materials for specific use in your practice.  It is strongly recommended that you save the course 
materials in advance in the event that you will be bringing a computer or tablet with you to the 
program. 
 
Prior to a scheduled program date, all registrants will receive an email message containing a hyperlink 
that when clicked will provide you with access to the complete course materials in a searchable PDF 
format which can be downloaded to your computer using the “Save As” option under your “File” tab. 
Printing the complete materials is not required for attending the program. Online materials are 
updated periodically to reflect last minute submissions from program faculty, guaranteeing that you will 
always have the latest version of the materials. 
 
To access the complete set of course materials, please insert the following link into your browser’s 
address bar and click ‘enter’: www.nysba.org/FederalCivilPracticeECM 
 
A CLE NotePad© (paper) will be provided to all attendees at the live program site.  The CLE NotePad© 
includes lined pages for taking notes on each topic, as well as any PowerPoint presentations submitted 
prior to printing. 
 
Traditional printed course books may be ordered at the program site for a discounted price and will be 
shipped subsequent to the program date. 
 
Please note: 
You must have Adobe Acrobat on your computer in order to view, save, and/or print the files.  If you 
do not already have this software, you can download a free copy of Adobe Acrobat Reader at this 
link:  http://get.adobe.com/reader/ 
 
In the event that you are bringing a laptop, tablet or other mobile device with you to the program, 
please be sure that your batteries are fully charged in advance as additional electrical outlets may 
not be available at your program location. 
 
NYSBA cannot guarantee that free or paid WI‐FI access will be available for your use at your program 
location, even if you can see a connection. 
 
ATTENDANCE VERIFICATION FOR NEW YORK MCLE CREDIT AND PROGRAM EVALUATION PROCESS 
 
Attendance Verifications:  In order to receive your New York MCLE credit, you are required to complete 
and return the Verification of Attendance form.  If you are attending a two‐day program, you will receive 
a separate form on each day of the program.  
 
  The bottom half of the form should be filled out and returned to the Registration Staff after the 
morning session has ended.  The top half should be filled out and returned to the Registration 
Staff at the end of the program.  Please be sure to turn in your form at the appropriate times – 
we cannot issue your New York MCLE credit without it.  Your MCLE Certificate will be emailed 
to you a few weeks after the program. 
  Please note: Partial credit for program segments not allowed. Under the New York State 
Continuing Legal Education Board Regulations and Guidelines, attendees at CLE programs 
cannot receive MCLE credit for a program segment unless they are present for the entire 
segment. Persons who arrive late, depart early, or are absent for any portion of the segment will 
not receive credit for that segment.  
 
The New York State Bar Association is committed to providing high quality continuing legal education 
courses, and your feedback regarding speakers and program accommodations is important to us.  Please 
be sure to fill out the online evaluation form after the program!  Thank you for choosing NYSBA CLE 
programs.  
 
Important Notice:   
All Course Materials for this program are copyrighted by the New York State Bar Association and are 
distributed to program attendees for their use only. 
 
Any other manner of distribution, including electronic transmission, for use by persons other than 
program attendees is not allowed without prior written permission from the New York State Bar 
Association Continuing Legal Education (CLE) Department. 
 
This program is offered for educational purposes. The views and opinions of the faculty expressed 
during this program are those of the presenters and authors of the materials, including all materials that 
may have been updated since the books were printed. Further, the statements made by the faculty 
during this program do not constitute legal advice. 
 Lawyer Assistance
Program 1.800.255.0569
Q. What is LAP?
A. The Lawyer Assistance Program is a program of the New York State Bar Association established to help attorneys, judges, and law
students in New York State (NYSBA members and non-members) who are affected by alcoholism, drug abuse, gambling, depression,
other mental health issues, or debilitating stress.

Q. What services does LAP provide?

A. Services are free and include:
• Early identification of impairment
• Intervention and motivation to seek help
• Assessment, evaluation and development of an appropriate treatment plan
• Referral to community resources, self-help groups, inpatient treatment, outpatient counseling, and rehabilitation services
• Referral to a trained peer assistant – attorneys who have faced their own difficulties and volunteer to assist a struggling
colleague by providing support, understanding, guidance, and good listening
• Information and consultation for those (family, firm, and judges) concerned about an attorney
• Training programs on recognizing, preventing, and dealing with addiction, stress, depression, and other mental
health issues

Q. Are LAP services confidential?

A. Absolutely, this wouldn’t work any other way. In fact your confidentiality is guaranteed and protected under Section 499 of
the Judiciary Law. Confidentiality is the hallmark of the program and the reason it has remained viable for almost 20 years.

Judiciary Law Section 499 Lawyer Assistance Committees Chapter 327 of the Laws of 1993
Confidential information privileged. The confidential relations and communications between a member or authorized
agent of a lawyer assistance committee sponsored by a state or local bar association and any person, firm or corporation
communicating with such a committee, its members or authorized agents shall be deemed to be privileged on the
same basis as those provided by law between attorney and client. Such privileges may be waived only by the person,
firm or corporation who has furnished information to the committee.

Q. How do I access LAP services?

A. LAP services are accessed voluntarily by calling 800.255.0569 or connecting to our website www.nysba.org/lap
Q. What can I expect when I contact LAP?
A. You can expect to speak to a Lawyer Assistance professional who has extensive experience with the issues and with the
lawyer population. You can expect the undivided attention you deserve to share what’s on your mind and to explore
options for addressing your concerns. You will receive referrals, suggestions, and support. The LAP professional will ask
your permission to check in with you in the weeks following your initial call to the LAP office.

Q. Can I expect resolution of my problem?

A. The LAP instills hope through the peer assistant volunteers, many of whom have triumphed over their own significant
personal problems. Also there is evidence that appropriate treatment and support is effective in most cases of mental
health problems. For example, a combination of medication and therapy effectively treats depression in 85% of the cases.
 Personal Inventory

Personal problems such as alcoholism, substance abuse, depression and stress affect one’s ability to
practice law. Take time to review the following questions and consider whether you or a colleague
would benefit from the available Lawyer Assistance Program services. If you answer “yes” to any of
these questions, you may need help.

1. Are my associates, clients or family saying that my behavior has changed or that I
don’t seem myself?
2. Is it difficult for me to maintain a routine and stay on top of responsibilities?
3. Have I experienced memory problems or an inability to concentrate?
4. Am I having difficulty managing emotions such as anger and sadness?
5. Have I missed appointments or appearances or failed to return phone calls?
Am I keeping up with correspondence?
6. Have my sleeping and eating habits changed?
7. Am I experiencing a pattern of relationship problems with significant people in my life
(spouse/parent, children, partners/associates)?
8. Does my family have a history of alcoholism, substance abuse or depression?
9. Do I drink or take drugs to deal with my problems?
10. In the last few months, have I had more drinks or drugs than I intended, or felt that
I should cut back or quit, but could not?
11. Is gambling making me careless of my financial responsibilities?
12. Do I feel so stressed, burned out and depressed that I have thoughts of suicide?

There Is Hope
CONTACT LAP TODAY FOR FREE CONFIDENTIAL ASSISTANCE AND SUPPORT
The sooner the better!

Patricia Spataro, LAP Director

1.800.255.0569
PROGRAM AGENDA 
 
(Please note the different time schedule below for Albany’s and Melville’s  afternoon sessions.) 
 
8:30‐9:00 a.m. 
REGISTRATION (outside meeting room) 
 
9:00‐9:10 
WELCOME AND INTRODUCTION 
 
9:10‐10:25 
I. COMMENCEMENT OF THE ACTION 
Subject Matter Jurisdiction and Removal * Personal Jurisdiction and Venue 
* Complaint and Answer 
Peter J. Ausili, Esq. (Melville) * James T. Potter, Esq. (Albany) 
 
10:25‐10:40 
COFFEE BREAK 
 
10:40‐11:30 
II. ETHICS IN NEW YORK’S FEDERAL COURTS 
Admission to Practice * What Disciplinary Rules Apply * Communicating 
with a Represented Party * Document Production and Inadvertent 
Production of Privileged Materials * Recent Developments 
James M. Wicks, Esq. (Melville) * Michael J. Murphy, Esq. (Albany) 
 
11:30‐12:20 p.m. 
III. MOTION PRACTICE 
Temporary Restraining Orders * Preliminary Injunctions * Motions to Dismiss 
* Summary Judgment 
Michael Cardello III, Esq. (Melville) * Seth F. Eisenberg, Esq. (Abany) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ALBANY SESSION 
 
12:20‐12:45 
ADR (ALTERNATIVE DISPUTE RESOLUTION) 
Scott A. Barbour, Esq. (Albany) 
 
12:20‐1:20 [12:45‐1:45 Albany) 
 
LUNCH (on your own) 
 
1:20 –2:10 
IV. DISCOVERY (other than Depositions) [1:45‐2:35 Albany) 
Rule 26(a) Disclosure and Rule 26(f) Meeting * Interrogatories * Document 
Requests * Requests for Admission 
Patrick McCormick, Esq. (Melville) * Yvonne E. Hennessey, Esq. (Albany) 
 
2:10‐3:00 
V. DEPOSITIONS [2:35‐3:25 Albany] 
Preparing Witnesses * Examining Witnesses * Expert Depositions 
John P. McEntee, Esq. (Melville) * Oliver N. Blaise, III, Esq. (Abany) * 
 
3:00‐3:15 
COFFEE/SOFT DRINK BREAK [3:25‐3:40 Albany] 
 
3:15‐4:05 
VI. TRIALS AND FEDERAL RULES OF EVIDENCE [3:40‐4:30 Albany] 
Clifford S. Robert, Esq. (Melville) * Albert J. Millus, Jr., Esq. (Abany) * 
 
4:05‐4:30 
VII. A VIEW FROM THE BENCH [4:30‐4:55 Albany] 
Hon. A. Kathleen Tomlinson (Melville) * Hon. Christian F. Hummel 
(Abany)  
 
4:30 p.m. [4:55 p.m. Albany] 
ADJOURNMENT 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Program Faculty 
 
Overall Statewide Planning 
Chair 
 
Richard B. Friedman, Esq. 
McKenna Long & Aldridge 
LLP 
New York City 
 
Local Panels 
 
Melville, L.I. Session: James M. Wicks, Esq., Farrell Fritz, P.C., Uniondale (Chair and Moderator) 
* Peter J. Ausili, Esq., Law Clerk to the Hon. Leonard D. Wexler, United States District Judge, 
Eastern District of New York, Central Islip * Michael Cardello III, Esq., Moritt Hock & Hamroff 
LLP,  Garden City * D. Daniel Engstrand, Jr., Esq., Doniger & Engstrand, LLP, Northport * Patrick 
McCormick, Esq., Campolo, Middleton, & McCormick, LLP. Bohemia * John P. McEntee, Esq., 
Farrell Fritz, P.C., Uniondale * Clifford S. Robert, Esq., Robert & Robert, PLLC, Melville * Hon. A. 
Kathleen Tomlinson, United States Magistrate Judge, Eastern District of New York, Central Islip 
* James M. Wicks, Esq., Farrell Fritz, P.C., Uniondale. 
 
Albany Session: Maria E. Lisi‐Murray, Esq., Levene Gouldin & Thompson, LLP, Binghamton 
(Chair and Moderator) * Scott A. Barbour, Esq., McNamee, Lochner, Titus & Williams, P.C., 
Albany * Oliver N. Blaise, III, Esq., Coughlin & Gerhart, LLP, Binghamton * Seth F. Eisenberg, 
Esq., Law Clerk to the Hon. Thomas J. McAvoy, Senior United States District Judge, Northern 
District of New York, Binghamton * Yvonne E. Hennessey, Esq., Hiscock & Barclay LLP, Albany * 
Hon. Christian F. Hummel, United States Magistrate Judge, Northern District of New York, Troy 
* Albert J. Millus, Jr., Esq., Hinman, Howard & Kattell LLP, Binghamton * Michael J. Murphy, 
Esq., Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany * James T. Potter, Esq., 
Hinman Straub, P.C., Albany. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 TABLE OF CONTENTS

1. FEDERAL PRACTICE INCLUDING COMMENCEMENT OF THE ACTION 001

by D. Daniel Engstrand, Jr., Esq.

2. ETHICS IN FEDERAL COURT ........................................................................... 053

by James M. Wicks, Esq.

3. MOTION PRACTICE ........................................................................................... 067

by Michael Cardello III, Esq.

4. BASIC FEDERAL MOTION PRACTICE ........................................................... 091

by Seth F. Eisenberg, Esq.

5. ALTERNATE DISPUTE RESOLUTION IN THE NORTHERN DISTRICT

OF NEW YORK
THE PILOT PROGRAM TAKES OFF .................................................................... 111
by Scott A. Barbour, Esq.

6. DISCOVERY (other than DEPOSITIONS) .......................................................... 149

by Patrick McCormick, Esq.

7. BASIC FEDERAL CIVIL PRACTICE DISCOVERY

THE RULES, GUIDELINES, AND BEST PRACTICES ........................................ 171
by Yvonne E. Hennessey, Esq.

8. GUIDELINES FOR PREPARATION, TAKING AND DEFENDING OF

DEPOSITIONS IN FEDERAL CASES .................................................................... 213
by John P. McEntee

9. DEPOSITIONS ...................................................................................................... 227

by Oliver N. Blaise, III, Esq.

10. FEDERAL TRIAL PRACTICE .......................................................................... 263

by Albert J. Millus, Jr., Esq.

11. A SUMMARY OF THE PROPOSED AMENDMENTS TO THE FEDERAL

RULES OF CIVIL PROCEDURE ............................................................................ 333
by Kathryn Carney Cole, Esq.

12. PROGRAM FACULTY BIOGRAPHIES ........................................................... 339

FEDERAL PRACTICE INCLUDING

COMMENCEMENT OF THE ACTION

by

D. DANIEL ENGSTRAND, JR., ESQ.

Doniger & Engstrand, LLP

Northport

1
2
 FEDERAL PRACTICE
© 2013 D. Daniel Engstrand, Jr.
By: D. Daniel Engstrand, Jr., Esq.
Doniger & Engstrand, LLP
12 Bayview Avenue
P.O. Box 575
Northport, NY 11768
631.262.7400
[email protected]

I. SUBJECT MATTER JURISDICTION

Federal courts are courts of limited jurisdiction. (28 U.S.C. §§1330-1369).
Moreover, a federal court’s ability to fashion federal common law is “severely
limited”. See Boyle v. United Technologies, 487 U.S. 500 (1988). See also
Homburger v. Venture Minerals, Inc., 1985 WL 549 (S.D.N.Y.).

Essentially, for a federal court to have jurisdiction, the matter in controversy

must involve either the “Constitution, laws, or treaties of the United States”
(regardless of monetary limit) (28 U.S.C. §1331) or there must be a complete
diversity of citizenship between the parties and the amount in controversy
must exceed $75,000.00 (28 U.S.C. §1332).

A federal court has broad powers to retain jurisdiction over a state claim :
A. Supplemental Jurisdiction: The federal case law doctrines of
pendent claim jurisdiction and ancillary jurisdiction have been codified under
supplemental jurisdiction. (28 U.S.C. §1367). Essentially, if the state law
claim is so closely related to the federal claim that it is considered an integral
“part of the same case or controversy”, the federal court is required to
exercise jurisdiction over it, thereby combining the federal and related state
claims under one action. 28 U.S.C. §1367(a). See also, Nowack v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996)).
However, the federal court has discretion to “decline to exercise supplemental
jurisdiction” under certain circumstances set forth in 28 U.S.C. §1367(c). 1
Furthermore, in diversity cases, the federal court is not permitted to exercise
supplemental jurisdiction over state claims if doing so would be “inconsistent
with the jurisdiction requirements of the diversity” statute. 28 U.S.C. 1367(b). 2
Therefore, it is permissible, when supplemental jurisdiction will not be
invoked, to proceed in federal court on diversity against one defendant and in
state court against a non-diverse defendant, even though both involve the
1
Court has discretion to decline supplemental jurisdiction if state “claim raises a novel or complex
issue of State law . . . the claim substantially predominates over the [federal claim] . . . the district
court has dismissed all [federal] claims over which it has original jurisdiction, or . . . there are
other compelling reasons for declining jurisdiction.” 28 U.S.C. §1367(c)(1)-(4).
2
This includes state claims in third-party practice (Rule 14, Fed.R.Civ. Proc. (hereinafter referred
to as “FRCP”)), or claims by plaintiffs against persons joined as parties (Rules 19 and 20, FRCP)
or against those parties who have intervened in the action (Rule 24, FRCP). 28 U.S.C.
§1367(b).

3
 same case and/or controversy. Before supplemental jurisdiction can be
invoked over a state claim, the federal court must have original jurisdiction
over one of the federal claims in the action. Nowack, 81 F.3d at 1187.
(i) The statute of limitations on the state action is tolled while the
federal court exercises supplemental jurisdiction. Once the state action is
dismissed, the state statute of limitations is extended for 30 days, or if state
law so provides, a longer tolling period. 28 U.S.C. §1367(d).

II. VENUE
It is critical to commence your action in the proper judicial district. 28 U.S.C.
§1391 is the venue statute. Venue is determined based upon (1) where a
defendant resides, (2) where the claim arose or property that is the subject of
the action is situated, or (3) if there is no other district under (1) and (2),
above, then venue is based in any district in which the defendant is subject to
personal jurisdiction. 28 U.S.C. §1391(a).

III. COMMENCEMENT OF ACTION

An action is commenced by filing a complaint with the clerk of the court. 3

Rule 3, FRCP. Effective April 9, 2006, the one-time fee associated with filing
is now $350.00. Deficit Reduction Act of 2005 (Pub. L. 109-171). Once the
complaint has been filed, a docket number, district court judge and magistrate
judge will be assigned to the action.

A. PLEADINGS
The only pleadings allowed by the FRCP are as follows: complaint and
answer; reply to counterclaim denominated as such in the answer; answer to
a crossclaim; third-party complaint and third-party answer. Rule 7, FRCP.
a. Summons is presented to the clerk of the court at the time you file
complaint. The summons, however, is not filed at this time. The
clerk will sign and place the court’s seal on the original summons
and return it to you. You in turn will photocopy the signed
summons, attach it to your complaint and serve it, along with the
Civil Cover Sheet (see Section III(A)(d), infra) upon the defendant.
i. Service of Summons and Complaint: Service must be
made within 120-days of filing of the complaint with the
court. Otherwise, action could be dismissed. Rule 4(m),
FRCP.
ii. Once service upon the defendant has been made, pursuant
to any means allowed by Rule 4 of the FRCP, you then must

3
You must be admitted to the bar of the Eastern District federal courts to practice there. See
E.D.N.Y. court web site: http://www.nyed.uscourts.gov/. Click on “Local Documents”, then click
on “Court Forms”, then scroll down to “Attorney Forms” and click on “On-Line Attorney
Admissions” and “On-Line CM/ECF Attorney Registration”.

4
 electronically file the summons, along with the affidavit of
service with the court. 4
b. Complaint filed with the clerk of the court to commence action.
i. Complaint, counterclaim, crossclaim or third-party claim
must contain the following:
1. Jurisdictional statement. FRCP Rule 8(a);
a. In addition to stating the court’s subject matter
jurisdiction, either by federal statute or
diversity, the pleader must set forth the factual
basis for such statement such as the parties’
domicile in a diversity case 5 or the factual basis
for alleging a federal question 6.
i. If a diversity case, the amount in
controversy must exceed $75,000.00
and be between citizens of different
states. 7
ii. If a diversity case involves a corporate
party 8, set forth the state of
incorporation and principal place of
business. See 28 U.S.C. §1332(c)(1)—
“a corporation shall be deemed to be a
citizen of any State by which it has been
incorporated and of the State where it
has its principal place of business . . . .”
Id.
2. Although not required by Rule 8, FRCP, it is a good
idea to state basis for venue after your jurisdictional
statement. See Section II, supra.
3. Must have a “short and plain statement of the claim
showing that the pleader is entitled to relief”. Rule
8(a)(2), FRCP. “Each allegation must be simple,
concise, and direct.” Rule 8(d)(1), FRCP. Under
recent Supreme Court decisions, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009), to survive a Rule 12(b)(6)
motion to dismiss for failure to state a claim, the

4
Please note that effective August 2, 2004, electronic case filing (hereinafter referred to as
“ECF”) is mandatory for all federal civil and criminal actions. Administrative Order 2004-08. See
Section XI, infra. Hence, after the purchase of the docket number and filing the complaint, along
with the Civil Cover Sheet, all subsequent filings are to be done electronically.
5
28 U.S.C. §1332.
6
28 U.S.C. §1331.
7
An alien who has permanent residency is deemed a citizen of the state in which the alien is
domiciled. 28 U.S.C. §1332(a).
8
All corporate parties, whether plaintiff or defendant, must file a Rule 7.1, FRCP, disclosure
statement identifying parent corporation and any publicly held corporation that owns 10% of more
of its stock. Rule 7.1, FRCP.

5
 plaintiff must state enough facts to make its claim
“plausible on its face” to entitle it to the presumption of
truth. Cannot simply recite elements of the cause of
action or state labels and conclusions—must provide
facts to make to make the claim go beyond the
speculative level. In essence, the federal courts are
making it next to impossible to plead a civil RICO,
Section 1983 or antitrust causes of action. See Ferri
v. Berkowitz, 2009 WL 2731339 (EDNY August 2009)
(civil RICO did not plead facts to make claim facially
plausible)
a. “A party must state its claims or defenses in
numbered paragraphs, each limited as far as
practicable to a single set of circumstances. A
later pleading may refer by number to a
paragraph in an earlier pleading.” Rule 10(b),
FRCP.
4. Demand for judgment. Rule 8(a)(3), FRCP.
5. If fraud or mistake is alleged, must plead specifics.
Rule 9(b), FRCP.
6. If special damage is alleged, must plead specifics.
Rule 9(g), FRCP.
7. Jury demand. Rule 38, FRCP. Although not required
to be endorsed upon the pleadings (ie., “Complaint
and Demand for Jury Trial”), it may be. Otherwise if
not so endorsed, demand for jury trial must be made
“no later than 10 days after the last pleading directed
to the issue is served” and the same must be filed,
electronically, with the court. Id. 9
8. Caption must contain, in addition to the names of the
court and parties, Rule 10, FRCP, the docket number
and the initials of the judge and magistrate judge
assigned to the case. Rule 11.1, Local Civil Rule.
9. New as of December 1, 2007, is redacted filings. Rule
5.2, FRCP. Essentially, if a social security number,
taxpayer identification number, birth date, financial
account number, or a minor’s name is included in any
court filing, it can be truncated (i.e., last 4 digits of
social security, taxpayer identification and/or financial

9
In actions removed from state court to federal court under 28 U.S.C. §§1441, et seq., you are
not required to make a demand for a jury trial unless the federal court orders you to do so. Rule
81(c), FRCP, takes into account that in state practice, New York does not require a jury demand
to be made until a Note of Issue is filed. Therefore, if case is removed prior to the filing of a Note
of Issue in state court, you will not waive your right to a jury trial if you don’t make it within 10-
days from removal. (Rule 81(c), FRCP; see also Section IV(A)(f), infra).

6
 account number, year of birth only and minor’s
initials). Rule 5.2, FRCP.
c. Signing of Pleadings, Motions and Other Papers Under Rule
11, FRCP
i. Attorney must sign his/her name (not law firm name)
individually to all court papers (i.e., summons, complaint,
answer, motions, etc.) and list office address, e-mail address
and telephone number. Rule 11, FRCP. Local Civil Rule
11.1 requires, inter alia, that every pleading, written motion
and other paper must not only be signed by the individual
attorney, but the attorney’s name must be typed below the
signature. Rule 11.1, Local Civil Rule. No longer do
attorneys have to list their first and last initial and last four
(4) digits of that attorney’s Social Security number (ie., Dan
Engstrand (DE1234)) alongside their typed name.
ii. By signing, the attorney represents to the court that the
pleading or position advocated in whatever paper is filed with
the court is not frivolous. Rule 11(b), FRCP.
1. If found to be frivolous, opposing party may move for
Rule 11 sanctions to be imposed or court may, sua
sponte, issue a show cause order why sanctions
should not be imposed. Rule 11(c), F.R.C.P.
d. Civil Cover Sheet must accompany the complaint and be filed at
the same time with the clerk. Download the current form JS-44 that
went into effect on December 2007 at the Eastern District website:
http://www.nyed.uscourts.gov/. 10
e. Answer must be served within 20-days of service of summons and
complaint upon defendant. Rule 12, FRCP. Parties may stipulate
to a longer period or statute may so provide. 11 Id.
i. Must state “in short and plain terms its defenses to each
claim asserted against it; and . . . admit or deny the
allegations asserted against it by an opposing party.” Rule
8(b)(1)(A) and (B), FRCP.
1. Failure to deny, when a response is required, is
deemed an admission. Rule 8(b)(6), FRCP.
ii. Pursuant to Rule 8(c), FRCP, the following affirmative
defenses must be pleaded in the answer:
1. accord and satisfaction
2. arbitration and award

10
Once on the EDNY web site, click on “Local Documents” and then click on “Court Forms” to
access the Civil Cover Sheet form JS-44. Contained within the Civil Cover Sheet is an Arbitration
Certification. If, in good faith, your case exceeds the value of $150,000.00, exclusive of interest
and costs, do not fill out the Arbitration Certification. The court will send any case whose value
does not exceed $150,000.00 to arbitration. See Arbitration rules for E.D.N.Y. on the court’s web
site: http://www.nyed.uscourts.gov/. Click on “ADR” and follow prompts. See also, Local Civil
Rule 83.10 applicable to the EDNY only.
11
United States, as a defendant, has 60 days in which to serve an answer. Rule 12(a)(2), FRCP.

7
 3. assumption of risk
4. contributory negligence
5. discharge in bankruptcy
6. duress
7. estoppel
8. failure of consideration
9. fraud (and/or mistake) 12
10. illegality
11. injury by fellow servant
12. laches
13. license
14. payment
15. release
16. res judicata
17. statute of frauds
18. statute of limitations
19. waiver
20. and any other matter constituting an avoidance or
affirmative defense.
iii. Additional affirmative defenses: Although not required to
plead these defenses, failure to do so is deemed a waiver of
the following, if not included in a Rule 12 motion:
1. lack of jurisdiction over the person
2. improper venue
3. insufficient process
4. insufficient service of process
Rule 12(h)(1), FRCP. See Section VII(e)(3)(d)(i), infra. A
claim of lack of subject matter jurisdiction may be raised at any
time without fear of waiver. Rule 12(h)(3), FRCP. See also,
Section VII(e)(3), infra.

iv. Compulsory counterclaim 13 is any claim which the

defendant has against the plaintiff which “arises out of the
transaction or occurrence that is the subject matter” of the
plaintiff’s complaint and “does not require adding another
party over whom the court cannot acquire jurisdiction.” Rule
13(a), FRCP. Compulsory counterclaims must be included
in the answer, unless they are the subject of another
pending action. Id.
v. Permissive Counterclaims are all other claims that a
defendant may have against a plaintiff that does not arise

12
Fraud must be pleaded with particularity. Rule 9(b), FRCP. So too must the affirmative
defense of mistake be particularized. Rule 9(b), FRCP; see also Section III(A)(b)(i)(5), supra.
13
Whether compulsory or permissive, a counterclaim may exceed the amount sought in the
complaint. (Rule 13(c), FRCP). Plaintiff must serve and file, electronically, an “answer” to a
counterclaim “designated as a counterclaim”. Rule 7(a)(3), FRCP.

8
 “out of the transaction or occurrence that is the subject
matter” of the complaint. Rule 13(b), FRCP. Permissive
counterclaims are not required to be included in the answer.
Id.
vi. Crossclaim is any claim by one party against a “coparty if
the claim arises out of the transaction or occurrence that is
the subject matter of the original action or of a counterclaim.
. . .” Rule 13(g), FRCP. A “crossclaim may include a claim
that the coparty is or may be liable to the cross-claimant for
all or part of a claim asserted in the action against the cross-
claimant.” Id.

f. Third-Party Practice may be brought by the defendant at any time

after commencement of an action. Rule 14, FRCP. Defendant may bring
third-party action, as of right, within 10 days after serving original answer.
Beyond 10 days, need leave of court. Id. Defendant who commences
third-party action is called the third-party plaintiff and the responding party
is called the third-party defendant. Id. Keep in mind Rule 16 Scheduling
Orders which will set the outside date in which to commence a third-party
proceeding. Rule 16(b)(1), FRCP.

IV. REMOVAL OF PENDING STATE COURT ACTION TO FEDERAL

COURT
If the district court has original jurisdiction of an action brought in state
court (see Section I, supra), then that action can be removed by the
defendant to federal court. 28 U.S.C. §1441.
1) In removal under diversity jurisdiction, none of the defendants can
be a citizen of the state in which the state court action was
originally brought. 28 U.S.C. §1441(b).
2) In removal under federal question jurisdiction based upon a cause
of action arising under the Constitution or federal law or treaty, the
entire case, including non-removable causes of action, may be
removed. 28 U.S.C. §1441(c).

A. PROCEDURE FOR REMOVAL

a. Defendant has 30 days from service of the state court
pleadings in which to file a notice of removal with the federal
district court. 14 28 U.S.C. §1446. No court order or any
permission from any party is required to remove a proper
case to federal court. Removal takes place immediately
upon filing the notice of removal with the federal court. File
notice of removal along with a Civil Cover Sheet and pay the

14
Similar to hand filing of the Summons, Complaint and Civil Docket Sheet, the Notice of
Removal must be hand filed with the Clerk of the U.S. District Court. Thereafter, all other filings
must be done electronically.

9
 $350.00 filing fee. 28 U.S.C. §1446 states, in pertinent part,
the following:
i. Notice of Removal must contain a “short and plain
statement of the grounds for removal” 28 U.S.C.
§1446(a)(i.e., diversity—see Section III(A)(b)(i)(1)(a),
supra).
ii. Copies of all pleadings and orders served upon
defendant in state court action must be attached to
the notice. 28 U.S.C. §1446(a).
iii. Defendant must sign notice of removal, pursuant to
Rule 11, FRCP, and 28 U.S.C. §1446(a).
b. After notice of removal is filed with the federal district court
and a docket number purchased, defendant simply files the
notice of removal with the state court and serves all other
parties with a copy. Once that is done, the state court is
powerless to do anything further on the removed action,
unless it is subsequently remanded back to state court. 28
U.S.C. §1446(d).
c. If removal jurisdiction based on diversity, the notice of
removal must state the following:
i. States of citizenship, residence and address of each
party, whether or not yet served;
ii. State of incorporation of a corporate party and of its
principal place of business; and
iii. Date upon which each party was served with process.
Local Civil Rule 81.1(a).
d. Within 21 days of filing the notice of removal, the removing
defendant must file with the district court clerk a copy of all
records and proceedings in the state court. Local Civil Rule
81.1(b).
e. If at the time of removal, the defendant has not answered,
defendant has the longer of 20 days from date of service of
the original pleadings or 5 days from removal to answer or
move against the complaint. Rule 81(c), FRCP.
f. Unless the court orders a party to do so, you need no longer
file a demand for a jury trial in a removed action. Rule 81
(c)(3), FRCP. However, you guarantee yourself the right to
a jury trial if you file a Rule 38, FRCP, demand for a jury trial
within 10 days from service of notice of removal. See also fn
9, supra.

V. INITIAL SCHEDULING CONFERENCE, This Conference sets the

dates for depositions, service of requests for interrogatories, (effective
Dec. 1, 2006) provision for disclosure or discovery of electronically
stored information, service of requests for document production,
impleader, amendment of pleadings, motion practice (usually

10
 dispositive motions such as Rule 56 summary judgment motions),
discovery cut-off date (both fact and expert) and sets the date for the
final pretrial conference, etc. Rule 16(b), FRCP. Once a Scheduling
Order has been entered, it “may be modified only for good cause and
with the judge’s consent.” Rule 16(b)(4), FRCP.
i. Scheduling Conferences are held within 90 days of a
defendant’s appearance and within 120 days after the
complaint has been served, whichever is earlier. Rule
16(b)(2).
ii. 21-days prior to this conference, the parties are required to
get together outside of court, to discuss settlement, “develop
a proposed discovery plan”, including electronic discovery
and work out the accelerated disclosure that each party is
required to disclose under Rule 26. It also includes
discussing issues relating to preserving discoverable
information (electronic or otherwise), issues relating to
disclosure/discovery of electronic information and the form in
which it should be produced and issues relating to claims of
privilege. Rule 26(f), FRCP.
1. “If a party or its attorney fails to participate in good
faith in developing and submitting a proposed
discovery plan . . . , the court may, after giving an
opportunity to be heard, require that party or attorney
to pay to any other party the reasonable expenses,
including attorney’s fees, caused by the failure.” Rule
37(f), FRCP.
iii. 14 days after this informal, non-judicial conference, the
parties must submit to the court, a written report outlining
their discovery plan. Rule 26(f), FRCP. More often than not,
the court will draft a discovery/scheduling order at the initial
scheduling conference. See also, Form 52 (Report of
Parties’ Planning Meeting) in Appendix of Forms to the
FRCP.

VI. Federal Discovery: General Rule—“Parties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or
defense . . . .” Rule 26 (b)(1). “Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Id. Moreover, all parties are under a duty to amend or
update discovery responses “in a timely manner” as and when information
becomes available. Rule 26(e), FRCP. No requests for discovery can be made
“before the parties have conferred as required by Rule 26(f). Rule 26(d), FRCP.
Therefore, once the parties have had their Rule 26(f) informal conference in
preparation for the Scheduling Conference, they are free to begin serving
discovery requests upon each other.

11
 A. Privileges: Effective Dec. 1, 2006, Rule 26(b)(5) has been amended.
As was true under the former rule and continues under the amended rule, any
claim of privilege must be “expressly” made and must “describe the nature of the
documents, communications, or tangible things not produced or disclosed—and
do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.” Rule 26(b)(5)(A)(ii),
FRCP. However, if privileged information has accidentally been disclosed, Rule
26(b)(5)(B), FRCP, allows the party claiming the privilege to notify the party who
received the information of the privilege and the basis for it. “After being notified,
a party must promptly return, sequester, or destroy the specified information and
any copies it has; must not use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The producing party must
preserve the information until the claim is resolved.” Rule 26(b)(5)(B), FRCP.
See also footnote 15, infra, concerning Privilege Logs, and Local Civil Rule 26.2.

B. Discovery Devices:
a) Accelerated Discovery: Rule 26(a), FRCP—Without any request
having been made by any party, all parties must, either at or within 14 days after
the Rule 26(f) Scheduling Conference (or 30 days if you were joined as a party
after the initial Scheduling Conference), provide the following disclosure: (1)
identity of witnesses (name, address and telephone number), (2) copies or a
description and location of all documents as well as all electronically stored
information, that may be used to support a party’s claim or defense (unless solely
for impeachment), (3) damage computation, including documents “bearing on the
nature and extent of injuries suffered” (i.e, medical records and reports), and (4)
insurance agreements. Rule 26(a)(1), FRCP.

b) Discovery Requests Allowable After the Parties’ Informal Meeting

in Preparation for the Scheduling Conference:
1) Deposition Requests:
i. There is no priority of depositions under the Federal
Rules. Therefore, a defendant noticed for deposition
prior to a plaintiff, would have to testify prior to the
plaintiff.
ii. Rule 30, FRCP. Limited to no more than 10 depositions
per party. Rule 30(a)(2)(A)(i). If you feel that more than
10 depositions will be required, you should discuss this
prior to the Scheduling Conference with your adversaries.
In any event, you still must obtain Court leave; therefore,
it will be easier to discuss your anticipated need for
additional depositions at the court conference and to
seek to get it included in the Initial Scheduling Order.

12
 Otherwise, make a motion (follow Local Rules and
Judge’s Individual Rules).
a. “Unless otherwise stipulated or ordered by
the court, a deposition is limited to 1 day of
7 hours.” Rule 30(d)(1), FRCP.
b. Cannot instruct witness not to answer,
unless a privilege objection or “to enforce a
limitation ordered by the court, or to present
a motion under Rule 30(d)(3)(examination
conducted in bad faith “that unreasonably
annoys, embarrasses, or oppresses the
deponent or party”). Rule 30(c)(2), FRCP.
i. If a privilege objection is claimed, the
party claiming the privilege must
state the privilege claimed and
“describe the nature of the
documents, communications, or
tangible things not produced or
disclosed—and do so in a manner
that, without revealing information
itself privileged or protected, will
enable other parties to assess the
claim.” Rule 26 (b)(5), FRCP. 15 See
also, Local Civil Rule 26.2, in which
information concerning the following
must be provided either at the
deposition orally, if “readily available
to the witness being deposed” or “in
writing within fourteen (14) days after
the deposition”: Local Civil Rule
26.2.
ii. For privileged documents: must
state the type of document (i.e., a
letter), the subject matter of the
document, date of the document,
other information to identify the
document for a subpoena duces
tecum, including, the document’s
author, the addressees of the
document, any other recipients of the
document and the relationship of the
author, addressees and recipients to

15
It is an excellent idea to serve a Privilege Log, listing all relevant documents which you deem to
be privileged, upon your adversary. Otherwise, if you later claim that a certain document is
privileged, you opponent will argue either that the document was never included in the Privilege
Log or that no such log was ever served; hence, the privilege has been waived.

13
 each other. Local Civil Rule
26.2(a)(2)(A).
iii. For oral privileged communications:
must identify the person making the
communication, provide names of
persons present and their
relationship to the communicator, the
date and place of communication
and the general subject matter of the
communication. Local Civil Rule
26.2(a)(2)(B).
c. Only valid objection, other than privilege or
to prevent harassment, is an objection to
form. See Rule 32(d)(3)(B), FRCP. Failure
to raise an objection to the form of a
question at a deposition constitutes waiver
of such objection. Id. However, failure to
object at the time of the deposition “to a
deponent’s competence—or to the
competence, relevance, or materiality of
testimony—is not waived by a failure to
make the objection before or during the
deposition, unless the ground for it might
have been corrected at that time.” Rule
32(d)(3)(A), FRCP.
iii. Deposition of corporate, partnership or municipal entity
where identification of witness is unknown—Rule 30(b)(6)
allows a party to notice such an entity for deposition by
describing “with reasonable particularity the matters for
examination.” Rule 30(b)(6), FRCP. That noticed entity
is then required to designate a person to testify on its
behalf concerning the designated matters. This is also
true for non-party entities who have been subpoenaed to
testify at deposition. The power behind a Rule 30(b)(6)
notice is that your adversary will be precluded from
surprising you later at trial with a witness knowledgeable
on the subject set forth in the notice if such a witness was
not so produced in response to your notice.
iv. Depositions are normally oral depositions, transcribed by
a court reporter. However, the parties may stipulate to
have the depositions conducted by telephone “or other
remote means.” Rule 30(b)(4), FRCP. Under the Local
Rules, “[t]he motion of a party to take the deposition of an
adverse party by telephone will presumptively be
granted.” Local Civil Rule 30.3 (emphasis added).

14
a. You cannot exclude a non-party witness
from attending the deposition of a party or
another witness absent a court order. Local
Civil Rule 30.4.
b. Once a deposition has begun, the witness
cannot confer with his or her counsel,
unless it is for the purpose of determining
whether a privilege should be asserted.
Local Civil Rule 30.6.
c. The deposition notice can also request that
documents be produced at a deposition.
Rule 30(b)(2). Under Local Civil Rule 30.7,
the deposition should be scheduled
sufficiently far in advance “to allow for the
production of the documents in advance of
the deposition.” If the documents are not
produced beforehand, the party noticing the
deposition can decide whether or not to
proceed with the deposition.
d. Deposition notice must state “the method
for recording the testimony (i.e, audio,
audiovisual or stenographic transcription).
Rule 30(b)(3)(A), FRCP. However, any
other party “may designate another method
for recording the testimony in addition to
that specified in the original notice.” Rule
30(b)(3)(B), FRCP.
e. Review by witness of deposition transcript
or recording—deponent or party must
request the right to review the transcript
and/or recording “before the deposition is
completed”. . . .” Rule 30(e)(1) (emphasis
added). Once such a request has been
made prior to the completion of the
deposition testimony, the deponent has 30
days after being notified that the transcript
or recording is available for review to review
the transcript (or the recording) and make
“changes in form or substance, to sign a
statement listing the changes and the
reasons for making them.” Rule 30(e)(2)
(emphasis added). In effect, the witness
can completely change his or her answer.
This does not mean that the original answer
is erased. The jury can still hear the

15
 original answer, since it is an admission of
a party. See Rule 32, FRCP.
i. Make certain that your court reporter
follows Rule 30(e)(2) and Rule 30(f),
FRCP. Rule 30(e)(2), FRCP,
requires that the court reporter note
in its certificate whether the
deponent or party requested to
review the transcript and if so, attach
any changes the deponent makes
during the 30-day period. Rule 30(f)
focuses on how the court reporter
mails the transcript to the attorney
who ordered the deposition, the
attachment of exhibits used at the
deposition, and storage of the
deposition transcript or recording.
f. Any deposition can be used to contradict or
impeach the testimony of a witness. Rule
32(a)(2). A party’s deposition testimony
(including that of an officer, director, etc., or
that of a Rule 30(b)(6) witness, may be
used by an adverse party for any purpose
under the Federal Rules of Evidence (i.e.,
admission). Rule 32(a)(3), FRCP. Also,
the deposition testimony of any witness,
whether or not a party, may be used if the
witness is dead, is further away than 100
miles or outside of the U.S., is too ill to
testify or is imprisoned, or cannot be
subpoenaed, or “exceptional circumstances
exist”. Rule 32(a)(4)(A)-(E), FRCP.
i. “If a party offers in evidence only part
of a deposition, an adverse party
may require the offeror to introduce
other parts that in fairness should be
considered with the part introduced,
and any party may itself introduce
any other parts.” Rule 32(a)(6),
FRCP.
ii. Depositions from a related state
court proceeding involving the same
parties may be used in the federal
action. Rule 32(a)(8), FRCP. (i.e.,
federal court diversity action
involving products liability and

16
 pendant state court action for
personal injury in which the federal
defendants are also the third-party
defendants in the state court action
and defendants in the state court
action are also the third-party
defendants in the federal action—
depositions from state court action
may be used in federal court action.
Rule 32 (a)(8), FRCP.
iii. “On any party’s request, deposition
testimony offered in a jury trial for
any purpose other than
impeachment must be presented in
nontranscript form, if available . . . .”
Rule 32(c), FRCP. Therefore, if a
videotaped deposition was taken, but
only the typed transcript was used at
trial, any party could request that the
videotape be used.

2) Requests for Interrogatories 16

Interrogatories are questions that you ask of your adversary

which seek to elicit information relevant to your case.
Interrogatories cannot exceed 25, including subparts. Rule 33(a),
FRCP. Therefore, if you serve a request for interrogatories with 23
questions and thereafter, serve a second request with five
questions, you have exceeded the permissible amount by three.
Thus, you need leave of Court to serve your second request. Rule
33(a), FRCP.
(i) Contention interrogatories are not
objectionable—“An interrogatory is not
objectionable merely because it asks for
an opinion or contention that relates to fact
or the application of law to fact, but the

16
CAVEAT when practicing in the Southern District of New York: Local Civil Rule 33.3 is
applicable only to the Southern District of New York. This SDNY rule limits interrogatories “to
those seeking names of witnesses with knowledge of information relevant to the subject matter of
the action, the computation of each category of damage alleged, and the existence, custodian,
location and general description of relevant documents, including pertinent insurance
agreements, and other physical evidence, or information of a similar nature.” Local Civ. R.
33.3(a). Thereafter, interrogatories seeking any other information may only be served if the
information cannot be obtained by deposing a witness or serving a request for document
production. Local Civ. R. 33.3(b). The Southern District allows contention interrogatories to be
served 30 days prior to discovery cut-off as set forth in Initial Scheduling Order. Local Civ. R.
33.3(c).

17
 court may order that the interrogatory need
not be answered until designated
discovery is complete, or until a pretrial
conference or some other time.” Rule
33(a)(2).
(ii) The party answering an interrogatory has
30 days in which to do so. Rule 33(b)(2).
(iii) Each question/interrogatory must “to the
extent it is not objected to, be answered
separately and fully in writing under
oath.” Rule 33 (b)(3), FRCP (emphasis
added). The person answering the
interrogatory must sign it and, if there are
any objections, it must also be signed by
the attorney making them. Rule 33(b)(5),
FRCP. Objections must be “stated with
specificity” or they will be deemed waived.
Rule 33(b)(4), FRCP.
(iv) The answering party has the option to
produce or make available for copying
business records as well as electronically
stored information, if the answer to the
interrogatory “may be determined by
examining, auditing, compiling,
abstracting, or summarizing a party’s
business records . . . .” Rule 33(d), FRCP.
See also Local Civil Rule 33.1.

3) Requests for Production of Documents

Rule 34, FRCP, allows a party to request documents described with

“reasonable particularity” and/or access to property for purposes of inspection. A
party “may specify the form or forms in which electronically stored information is
to be produced (i.e., Word, .pdf, .jpeg, etc). Rule 34(b)(1)(C), FRCP.
Documents, including electronically stored information, must be produced in
response to such a request within 30 days. Documents can be produced “as
they are kept in the usual course of business or must organize and label them to
correspond to the categories in the request. . . .” Rule 34(b)(2)(E)(i), FRCP.
A. Electronically Stored Information: Effective December 1, 2006, a
“request [for electronically stored information] may specify the form or forms in
which electronically stored information is to be produced.” Rule 34(b)(1)(C),
FRCP. If the requesting party failed to specify the form in which to produce the
electronically stored information, the responding party “must produce it in a form
or forms in which it is ordinarily maintained or in a reasonably usable form or
forms . . . .” Rule 34(b)(2)(E)(ii), FRCP. Moreover, the responding party “need

18
not produce the same electronically stored information in more than one form.”
Rule 34(b)(2)(E)(iii), FRCP.
(i) If the responding party deems the source from which the electronic
information is stored as being “not reasonably accessible because
of undue burden or cost”, then the responding party need not
produce it. Burden is upon the responding party to show that the
electronic information is “not reasonably accessible because of
undue burden or cost”. Court may then shift the cost of production
upon the party requesting such electronic information. Rule
26(b)(2), FRCP.
(ii) Destruction/Spoliation of Electronically Stored Information: “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.” Rule 37(e), FRCP.

B. Discovery from Non-Parties:

(i) Non-parties can be subpoenaed, pursuant to Rule 45, FRCP, to
produce documents. If a discovery subpoena (not a trial
subpoena) is issued, “then before it is served, a notice must be
served on each party.” Rule 45(b)(1), FRCP. Therefore, for
any discovery subpoena to be valid, you must first provide your
adversary with notice of the same by serving him or her with a
copy prior to serving the non-party witness or entity. This prior
notice is not true for trial subpoenas, which are made returnable
to the courthouse and not to an attorney’s office.
a. Although subpoenas may only be served
within the court’s district or within 100 miles
outside of the district, you can always issue
a subpoena from a district court of another
district to obtain documents that are located
hundreds of miles away (see example of
foreign subpoena). Rule 45(a)(3), FRCP. It
is important that the subpoena be
returnable within the out-of-state district.
“An attorney also may issue and sign a
subpoena as an officer of . . . a court for a
district where a deposition is to be taken or
production is to be made, if the attorney is
authorized to practice in the court where the
action is pending.” Rule 45(a)(3)(B), FRCP.
Therefore, witness is located in California
and action is pending in EDNY. Since you
are admitted to practice in EDNY where the
action is pending, you can serve a federal

19
 subpoena from a federal court in California
upon the California witness.
b. Subpoenas may now command, in addition
to testimony, the inspection of premises,
and the “inspection, copying, testing” of
documents and/or materials, that a party
may now inspect, copy and test
electronically stored information. The
subpoena may specify the form in which to
produce the electronically stored
information. Rule 45(a)(1)(C), FRCP.
c. If commanded to produce documents or
electronically stored information, you need
not personally appear, unless so
commanded in the subpoena. Rule
45(c)(2)(A), FRCP.
d. 14-days after service of a subpoena or
before the time specified for compliance,
whichever is earlier, a person commanded
to produce documents, electronically
stored information or allow a physical
inspection may serve written objection on
the attorney for the commanding party.
Rule 45(c)(2)(B), FRCP. Once written
objection has been made, the commanding
party must obtain a court order if he/she
wishes to obtain the items sought or an
inspection. Id.
e. Responding party need not produce
electronically stored information if “not
reasonably accessible because of undue
burden or cost.” Rule 45(d)(1)(D), FRCP.
Court order must then be obtained. See
this section at Part VI(B)(3)(A)(i), supra.
f. If information, including electronically stored
information, is produced and it turns out
later to be privileged, the producing party
may notify the receiving party of the
privilege claim and the basis for it. “After
being notified, a party must promptly return,
sequester, or destroy the specified
information and any copies it has; must not
use or disclose the information until the
claim is resolved; must take reasonable
steps to retrieve the information if the party
disclosed it before being notified . . . .” Rule

20
 45(d)(2)(B), FRCP. The receiving party, if it
wants to challenge the privilege claim, may
“promptly present the information to the
court under seal for a determination of the
claim.” Id. See also, Rule 26(b)(5)(B),
FRCP and this section at Part
VI(B)(b)(1)(ii)(b)(i), supra. See also
footnote 15, supra, concerning Privilege
Logs.

C. Uniform Definitions in Discovery Requests—See Local Civil Rule

26.3.
a. E-mails and documents stored electronically
are discoverable.
b. Attorneys are expected to cooperate with
each other in all phases of discovery. Local
Civil Rule 26.5

4) Physical and Mental Examinations Under Rule 35

Rule 35 goes hand in hand with Rule 26’s requirement of expert
disclosure. When an expert’s report is exchanged, Rule 26 requires that
the expert’s qualifications be disclosed, a listing of all publications
authored by the expert for the past 10 years, the expert’s compensation,
four years worth of cases that the expert has testified in either at trial or at
deposition. Rule 26(a)(2), FRCP. Expert disclosure is done through
interrogatory responses. Experts may be deposed by the adverse party,
provided the expert’s reasonable fee is paid in advance.
With respect to physical and mental examinations, if you want to
get a report of this examination, you must request it. Rule 35(b)(1),
FRCP. “The examiner’s resport must be in writing and must set out in
detail the examiner’s findings, including diagnoses, conclusions, and the
results of any tests.” Rule 35(b)(2), FRCP. However, once the examiner’s
report has been delivered to you, the other party “may request—and is
entitled to receive [from you] . . . reports of all earlier or later examinations
of the same condition.” Rule 35(b)(3), FRCP.

5) Requests to Admit Under Rule 36

The answering party has 30 days to respond. Can request an admission
about “facts, the application of law to fact, or opinions about either; and . .
. the genuineness of any described documents.

VII. Motion Practice

a) Local Civil Rules: The attorneys for the parties must confer in good faith
prior to commencing motion practice on discovery proceedings or any other non-

21
dispositive pretrial dispute. Local Civil Rule 37.3(a). Telephone the Magistrate
Judge (check first with the Magistrate’s Individual Rules) if a dispute arises
during a deposition. Local Civil Rule 37.3(b). If the dispute cannot be resolved
or if the court cannot be reached by telephone for a ruling, the affected party can
arrange for a teleconference with the court and all parties on line or the affected
party can send the court a letter with copies to all parties, not exceeding three
pages in length, and exhibits may be included. Local Civil Rule 37.3(c).
Thereafter, opposing counsel, within 4 days of receiving such a letter, may
respond in kind with a three page letter in opposition. Id. The Court may issue a
letter ruling, by writing its decision in the margin of the letter motion. Local Civil
Rule 37.3(e). In the Southern District, letters are not filed electronically. In the
Eastern District, letters are filed electronically, with a courtesy copy sent to
Chambers.

b) Time Periods for Motion Service Under the Federal Rules:

A motion served on 5 days notice (Rule 6(c)), plus 3 days for mailing. Rule 6(d),
FRCP. Opposing affidavits are served no later than 1 day prior to hearing. Rule
6(c)(2), FRCP.

c) Local Rules: Time Periods for Motion Service:

Local Civ. R. 5.3 Overnight Delivery is deemed service by mail; no service by fax
unless agreed to by all parties or a court order to that effect—otherwise such
service is considered void.

Local Civil Rule 6.1(a): On discovery motions pursuant to Rules 26 through 37,
movant selects arbitrary return date. Then answering papers must be served
within 7 days thereafter and reply papers 2 days after that.

Local Civil Rule 6.1(b): Dispositive Motions (i.e., summary judgment under Rule
56) 17, movant again selects an arbitrary return date. This time, however, you
have until 14 days in which to serve answering papers in opposition. Reply
papers, if any, are then served within 7 days after that.

Local Civil Rule 6.2: Orders on Motions—A signed memorandum decision or an

oral decision on a motion shall constitute the order of the court, unless a settle
order is directed.

17
Dispositive motions are any motions which can effectively dispose of a case. Hence, these
motions are not just limited to Rule 56, FRCP, summary judgment motions. They can also
include a motion to preclude an expert for failure to properly disclose, pursuant to Rule 26(a)(2),
FRCP.

22
The federal rules do not contemplate service of an order with notice of entry as in
state practice. Therefore, appeals begin to rule from the entry date. See Rule
4(a)(1)(A), Rules of Appellate Procedure—“In a civil case . . . the notice of appeal
. . . must be filed with the district clerk within 30 days after the judgment or order
appealed from is entered.”(emphasis added). 18 Since the notice of appeal must
now be filed electronically, the 30-day time period is stopped at that point. In
addition, you now have the option of paying the appropriate fee on-line via credit
card or by physically visiting the clerk’s office or by mailing the check to the clerk.
Beware—if you fail to check the docket on PACER, an adverse decision could
have been entered without your even knowing about it and thus, your time in
which to file an appeal could be jeopardized.

d) Judge’s Individual Rules: Once a case is filed in the Clerk’s office, it is

immediately assigned to both a District Judge and a Magistrate Judge.
Immediately obtain a copy of the Judge’s rules from the Clerk’s Office or
download from the internet (i.e., www.nyed.uscourts.gov then go to “Local
Documents” on the left side of the screen and select “Motions and Individual
Practices”). Many judges require that before a motion is served, a briefing
schedule is worked out with the parties either beforehand or at a conference
before the Court. See also, Section V, supra.

e) Examples of Various Types of Motions (Always consult Local Rules and

Judge’s Individual Rules):
1) Rule 11 Motions: Make and serve motion, but allow 21 days after
service before filing with court. This 21-day time period allows other
party to withdraw or reconsider its position concerning the
challenged issue.
2) Rule 56 Summary Judgment Motions. Make certain that a Local
Civil Rule 56.1 Statement of undisputed facts is filed with your
motion or it could be a ground for automatic dismissal. In
opposition to summary judgment, make certain that a Local Civil
Rule 56.1 Statement of contested facts is filed and that it tracks the
movant’s 56.1 Statement, paragraph by paragraph.
3) (a) Rule 12 Motions Generally: Motion made prior to responding to
pleadings. If motion denied, you have 10 days to serve a
responsive pleading. Rule 12(a)(4)(A), FRCP. These motions deal
with “(1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficient
process, (5) insufficient service of process, (6) failure to state a
claim upon which relief can be granted, (7) failure to join [an
indispensable party].” Rule 12(b), FRCP.
(b) Motion for judgment on the pleadings: Self explanatory. If
additional matters outside the pleading are allowed, then the motion

18
With limited exceptions such as interlocutory appeals on an issue of qualified immunity,
appeals are only from final orders (i.e., summary judgment dismissing an action) or from a
judgment.

23
 is treated as one for summary judgment under Rule 56 (if that
happens, do not omit a Local Civil Rule 56.1 Statement). Rule
12(d), FRCP. The same is true if a motion is made under Rule
12(b)(6) for failure to state a claim—it can also be treated as a Rule
56 summary judgment motion if matters outside the pleadings are
presented. Rule 12(d), FRCP.
(c) Rule 12(e) motion for more definite statement in the pleadings:
Movant must point out the defects in the pleading. If motion
granted and not complied with within 10 days, pleading may be
stricken.
(d) Rule 12 Motion to Strike—Motion made prior to responding to
pleading or, if no response is permitted (i.e., an Answer), within 20
days after service of the objectionable pleading. This is a motion to
strike from any pleading “any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Rule 12(f), FRCP.
(i) CAVEAT: If you make a motion under Rule 12, you
waive any claim that you may have for “lack of
jurisdiction over the person, improper venue, insufficient
process, or insufficient service of process, unless you
include it as part of your motion. If you do not make a
Rule 12 motion, you still waive the above defenses,
unless you include it as a defense in your answer or
amended answer. Rule 12(h)(1), FRCP.
(ii) Motion for failure to state a claim, failure to join an
indispensable party or failure to state a legal defense to
a claim can be raised at any time, whether by motion, in
the pleadings or at the time of trial. Rule 12(h)(2),
FRCP. See also, Section III(A)(e)(iii), supra.
(iii) Lack of subject matter jurisdiction (i.e., diversity) can be
raised at any time. Rule 12(h)(3), FRCP.
4) Amended Pleadings under Rule 15. Party may amend as of right
within 21 days after serving it, or, within 21 days of service after
service of a responsive pleading (i.e., Answer) or a Rule 12(b)
motion, whichever comes first. Other than that, to amend a
pleading, must make a motion or get a signed stipulation from your
adversary. “The court should freely give leave when justice so
requires.” Rule 15(a)(2), FRCP.
(i) Relation back doctrine: “An amendment to a pleading
relates back to the date of the original pleading when . .
.” statute so provides or if it “arose out of the conduct,
transaction, or occurrence set out—or attempted to be
set out—in the original pleading. . . .” Rule 15(c)(1)(B),
FRCP. This is important if you name a “John Doe” as a
defendant and thereafter, after the statute of limitations
runs, you learn John Doe’s true identity. It is also
useful if you had named the wrong, but similar sounding

24
 corporate entity and thereafter, learned the name of the
proper entity to be charged. You may change the name
of the defendant and get the benefit of “relation back” if
the new defendant had notice of the lawsuit, would not
be prejudiced and “knew or should have known that the
action would have been brought against it, but for a
mistake concerning the proper party’s identity.” Rule 15
(c)(1)(C), FRCP.

5) Discovery Motions Under Rule 37 and Local Civil Rules 37.1 and
37.3—If your adversary does not respond to your discovery
requests or is evasive in his or her response to your requests (i.e.,
interrogatories, document production, requests to admit or fails to
designate a Rule 30(b)(6) witness or a witness refuses to answer a
question at a deposition), before you may seek sanctions, with two
exceptions, you must first move to compel under Rule 37, FRCP.
The exceptions are if there is non-compliance with a Rule 16
Scheduling Order or failure to provide Rule 26(a) accelerated
disclosure. In those two instances, you may, at the same time,
move to compel and for sanctions. For non-compliance with a Rule
16 Scheduling Order, Rule 16, FRCP, itself provides for sanctions
and the award of attorney’s fees. Rule 16(f), FRCP.

Before making any such Rule 37 motion, you must certify that you, in
good faith, attempted to resolve these issues with your adversary in an
attempt to avoid judicial intervention. Rule 37(a)(1), FRCP.

CAVEAT: The losing party on a Rule 37 motion to compel will be

ordered to pay the prevailing party’s attorney’s fees in
making/defending against the motion. Rule 37(a)(5)(A) and (B). “If the
[Rule 37] motion is granted—or if the disclosure or requested discovery
is provided after the motion was filed—the court must . . . require the
party . . . whose conduct necessitated the motion . . . to pay the
movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” Rule 37(a)(5)(A). “If the motion is denied,
the court . . . must . . . require the movant, the attorney filing the
motion, or both to pay the party . . . who opposed the motion its
reasonable expenses incurred in opposing the motion, including
attorney’s fees.” Rule 37(a)(5)(B).

Once the court has ordered a discovery response by granting the Rule
37(a), FRCP, motion to compel and your adversary continues to fail to
comply, then such “failure may be treated as contempt of court.” Rule
37(b), FRCP. Rule 11 sanctions are not applicable to discovery
motions, Rule 11(d), FRCP. Rule 37 provides for sanctions in
discovery motions.

25
 (i) Before making a discovery motion, Local Civil Rule
37.3(a) requires you to “attempt to confer in good faith
in person or by telephone in an effort to resolve the
dispute.” Rule 37, FRCP, requires a certification that
you attempted to confer in good faith with your
adversary accompany your motion. Rule 37(a)(1),
FRCP.
(ii) The court should be notified by telephone of any
dispute that cannot be resolved during a deposition,
and an oral ruling, on the record, will be made. Local
Civil Rule 37.3(b).
(iii) If unable to resolve discovery dispute or if you cannot
reach court by telephone during deposition, Local Civil
Rule 37.3(c) allows you the option of doing one of the
following:
A. arranging a teleconference with the court and
all parties at a later date; or
B. write the court by letter not exceeding 3 pages
in length. Adversary has 4 days to respond
after receiving such letter with a letter in
opposition which cannot exceed 3 pages in
length.
Local Civil Rule 37.3(c). See also, Section VII, supra.

6) Motions to Preclude Expert

Depending upon the ultimate outcome of the case if an expert is
precluded, such a motion could be deemed dispositive. Hence, the
time to make such a motion should be within the time frame set for
dispositive motions in the Initial Scheduling Conference.
Not only must a narrative report of your expert be provided, but
also, a listing of publications that your expert has authored for the
past 10 years, a listing of cases in which the expert testified (both
deposition and trial) for the past 4 years, compensation paid for the
study and testimony, and the qualifications of the witness. Rule
26(a)(2)(B), FRCP. Failure to adhere to this expert disclosure rule
could result in the expert being precluded.

7) Motions for Reconsideration Under Local Civil Rule 6.3

You have 14 days from the date of entry to bring a notice of motion
for reconsideration. Affidavits are not permitted with this motion.
Only a notice of motion and accompanying memorandum of law
which sets “forth concisely the matters or controlling decisions
which counsel believes the court has overlooked.” Local Civil Rule
6.3.

26
f) Substitutes for Affidavits—28 U.S.C. §1746 and Local Civil Rule 1.10: “a
statement subscribed under penalty of perjury as prescribed in 28 U.S.C. §1746”
is an acceptable substitute for an affidavit or verified statement. Local Civil Rule
1.10.

VIII. Joint Civil Pre-Trial Orders

At the initial Scheduling Conference, a date is usually set for the final pre-
trial conference. Rule 16, Fed. R. Civ. Proc. Prior to that conference, many
district court judges require that a joint civil pre-trial order be submitted in
advance. Plaintiff has the burden of making the initial draft of this document. It is
a good idea to circulate the same to your adversary by e-mail in Word format.
Request that your adversary track any changes, additions and/or inclusions that
he or she may make to this document. Because this is a “joint” order, the parties
must come to a meeting of the minds as to how this document should be drafted.
Consult the judge’s Individual Rules for each judge’s specific requirements.
Essentially, this joint civil pre-trial order lists counsel for each party, jurisdictional
statement, all witnesses including experts, each party’s contention, stipulations of
uncontested fact, listing of exhibits and estimation of length of trial.
With respect to your listing of exhibits, it is always a good idea to include
the premarked exhibits in an exhibit binder, a copy of which is furnished to the
court.

IX. Electronic Case Filing

Effective August 2, 2004, electronic filing is mandatory in all civil cases

filed in the Eastern District.
Electronic filing means that, once registered, you can file all documents in
a civil action, except for the summons, complaint and civil cover sheet which
must still be traditionally filed with the clerk’s office, via the internet without
having to leave your office. 19 You can also retrieve any document listed on the
court’s docket sheet via the internet (must register with PACER). In addition, by
registering to file electronically, the Court will automatically notify you via e-mail
of any activity (filings, entry of orders, etc.) on cases in which you are designated
as the attorney of record. Finally, because electronic filing is mandatory, you can
serve your adversary via e-mail, because your adversary is also required to be
registered.
You must separately register with both the EDNY and the SDNY.
Registration with the E.D.N.Y. can be done on-line by going to the court’s web
site--http://www.nyed.uscourts.gov. Once there, simply click on the CM/ECF
button on the left of the screen. Then go to “Attorney Registration” and click on
where highlighted. Fill out the form and within 24 hours, you will be registered.

19
Even though documents have been filed electronically, check the judge’s individual rules.
Some judges require a courtesy hard copy of the same also to be filed with chambers.

27
This process is the same for the SDNY. 20 Once registered, you will be issued a
user name and password, which will be your electronic signature for Rule 11
purposes. Therefore, each attorney in your office must register. To file
electronically, it is necessary that you have Adobe Acrobat Exchange software to
convert your documents to a PDF format. Once the document has been
converted, you can then download them to the court via the internet. You will also
need to have the following web browser versions or a later version: Internet
Explorer 5.5sp2, Netscape Navigator 4.5 or Mozilla 1.2.
As of yet, there is no charge to register or file electronically. However, to
retrieve documents electronically, you must also have a PACER account. This
too, can be obtained from the court’s web site by again going directly to the
CM/ECF button on the left of the screen. Once there, you simply click on the
highlighted “Public Access (non-filers and attorneys)” button and then select the
Pacer Service Center Homepage” and register for a Pacer account on-line.
Effective January 1, 2005, there is a $0.08 per page charge by Pacer for each
page downloaded.
The EDNY has a 2 hour training program conducted once a month which
will instruct you on how to up and down load documents electronically. Contact
Ms. Cynthia Mann (631.712.6011) at the EDNY in Central Islip for a listing of
dates for ECF training. As an added bonus, you will receive 2 hours of CLE
credit for this training.

20
The S.D.N.Y. web site is as follows: http://www.nysd.uscourts.gov/. Once there, click on
“ECF” at the top of the page and then click on to “Attorney Registration”.

28
 AO 440 (Rev. 12109) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the
Eastern District of New York

LISA NOWOSIELSKI

cv 12 2589
)
)
Plaintiff
)
V. ) Civil Action No.
American Multi-Cinema, Inc. and AMC Entertainment
Inc. d/b/a AMC Lowes Stony Brook 17
Defendant
)
)
)
HURLEY,Jj
Bl'tCJWN;-M.-J.-
SUMMONS IN A CIVIL ACTION

To: (Deftndant"snameandaddress) AMERICAN MULTI-CINEMA, INC., 920 Main St., Kansas City, MOB4105

AMC Entertainment Inc. d/b/a AMC Loews Stony Brook 17, 920 Main St., Kansas
City, MOB4105

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it)- or 60 days if you
are the United States or a United States agency, or an officer Dr employee of the United States described in Fed. R. Civ.
P. 12 (aX2) or (3)- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are: DONIGER & ENGSTRAND, LLP
P.O.Box575
Northport, NY 11768

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must flie your answer or motion with the court.

DOUGLAS C. PAU~ER
CLERK OF COURT
MAY 2 3 2012
Date: ~-~
Signature ofCl~rk or Dejuty Clerk

29
 cv 12 2589
UNITED STATES DISTRICT COURT * MAY 2 3 2012
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------)( LONG ISLAND OFFICE
USA NOWOSIELSKI,

Plaintiff, COMPLAINT and

DEMAND FOR JURY TRIAL
-against-

Docket No.: 12 Civ. _ _ ( )( )

AMERICAN MUL T/-CINEMA, INC. and

AMC ENTERTAINMENT INC. d/b/a
AMC LOEWS STONY BROOK 17,

Defendants. HURLEY,j_
BROWN, M. J. -
----------------------------------------------------)(

Plaintiff LISA NOWOSIELSKI, by her attorneys, DONIGER & ENGSTRAND,

LLP, as and for her complaint against defendants AMERICAN MULTI-CINEMA, INC.

and AMC ENTERTAINMENT INC d/b/a AMC LOEWS STONY BROOK 17, based

upon personal knowledge with respect to herself and upon information and belief with

respect to all other matters, alleges the following:

JURISDICTION and VENUE

1. Jurisdiction is conferred upon this Court over this matter, pursuant to 28

U.S.C. §1332, since the parties are citizens of diverse states, and the amount of the

controversy exceeds, exclusive of interest and costs, the sum of SEVENTY-FIVE

THOUSAND DOLLARS ($75,000c00).

2. Venue is properly placed in the United States District Court for the Eastern

District of New York since the occurrence complained of happened at 21JI6 Nesconset

30
 Highway, Stony Brook, County of Suffolk, State of New York, which is located in the

Eastern District of New York.

THE PARTIES

3. Plaintiff LISA NOWOSIELSKI is a citizen of the State of New York.

4. Defendant AMERICAN MULTI-CINEMA, INC. (hereinafter referred to as

defendant "AMERICAN MULTI-CINEMA") was and is a foreign corporation duly organized

and existing under and by virtu€ of the laws of the State of Missouri with its principal place

of business located at 920 Main Street, Kansas City, Missouri 64105.

5. As such, defendant AMERICAN MULTI-CINEMA is a citizen of the State of

Missouri.

6. Defendant AMC ENTERTAINMENT INC. (hereinafter referred to as

defendant "AMC ENTERTAINMENT') was and is a foreign corporation duly organized and

existing under and by virtue of the laws of the State of Delaware with its principal place of

business located at 920 Main Street, Kansas City, Missouri 64105.

7. As such, defendant AMC .ENTERTAINMENT is a citizen of the State of

Delaware.

8. Defendant AMC ENTERTAINMENT is doing business in New York at 2196

Nesconset Highway, Stony Brook, New York under the assumed name of AMC LOEWS

STONY BROOK 17.

AS AND FOR A FIRST CAUSE OF ACTION FOR COMMON LAW NEGLIGENCE

9. Plaintiff repeats, reiterates and realleges each and every allegation contained

in paragraphs "1" through "8" inclusive, with the same force and effect as though more fully

31
 set forth herein at length.

10. Defendant AMERICAN MULTI-CINEMA owns and operates a movie theater

at 2196 Nesconset Highway, Stony Brook known as AMC Stony Brook 17 and/or AMC

Lowes Stony Brook 17 (hereinafter referred to as the "AMC Lowes Movie Theater in Stony

Brook").

11. Defendant AMC ENTERTAINMENT also owns and operates AMC Lowes

Movie Theater in Stony Brook.

12. Defendants AMERICAN MULTI-CINEMA and AMC ENTERTAINMENT

(hereinafter collectively referred to as "defendants") maintain the AMC Lowes Movie

Theater in Stony Brook.

13. AMC Loews Movie Theater in Stony Brook is a multiplex movie theater

comprised of multiple public assembly auditorium rooms used for the primary purpose of

exhibiting motion pictures (movies) to the general public.

14. Auditorium 16 is one of the public assembly auditorium rooms in the AMC

Loews Movie Theater in Stony Brook iiJ which motion pictures can be exhibited.

15. Auditorium 16 has an aisle consisting of stairs leading to rows in the elevated

section of that auditorium.

16. Stair tread lighting is affixed to each step to illuminate the stairs and aisle for

members of the general public traversing the aisle and stairs when the theater is darkened

for a motion picture to be exhibited in Auditorium 16 of the AMC Loews Movie Theater in

Stony Brook.

17. Defendants are responsible for insuring that the stair treat lighting is properly

32
 functioning and will reasonably and adequately illuminate each of the stairs in the darkened

theater while a motion picture is being exhibited.

18. Defendants are responsible for inspecting and repairing the stair treat lighting

at their theater on a daily basis.

19. AMC Loews Movie Theater in Stony Brook and its auditoriums are advertised

and held out by defendants as a safe and fun place for members of the public, and more

particularly, for plaintiff, to come and watch motion pictures being exhibited there.

20. Defendants sell tickets to members of the public, and more particularly to

plaintiff, who wish to watch motion pictures at the AMC Loews Movie Theater in Stony

Brook.

21. On or about March 30, 2012, plaintiff LISA NOWOSIELSKI was lawfully

present in Auditorium 16 at the AMC Loews Movie Theater in Stony Brook.

22. While watching the film, 'The Hunger Games" that was being exhibited in the

darkened Auditorium 16, plaintiff attempted to walk down the aisle and stairs.

23. Unbeknownst to plaintiff, the stair tread lighting on the last step was not

functioning and did not illuminate the last step.

24. As a result, plaintiff missed the last step, tripped and fell to the floor below

thereby sustaining serious, painful and debilitating injuries.

25. Defendants and their agents, servants and/or employees had notice and/or

knowledge that the stair tread lights on the last step in Auditorium 16 was not working and

did not illuminate the last step.

26. Said stair tread light was broken and in need of repair for a sufficient period

33
 of time prior to plaintiff's accident to have been repaired.

27. Despite this notice and/or knowledge, defendants failed and neglected to

safely and properly repair the stair tread lights in Auditorium 16 so as to allow and/or cause

a dangerous, hazardous and life-threatening hazard to exist thereon.

28. That despite this notice and/or knowledge, defendants and their agents,

servants and/or employees advertised, misrepresented and held out Auditorium 16 and its

aisle stairs as a reasonably safe place for members of the public and, more particularly, for

plaintiff LISA NOWOSIELSKI to use and traverse.

29. That defendants and their agents, servants and/or employees failed to

properly guard against and correct the dangerous, hazardous and life-threatening hazard

which they caused to exist at the premises to protect members of the public and, more

particularly, plaintiff LISA NOWOSIELSKI from its dangers.

30. That defendants and their agents, servants and/or employees failed to

properly alert and warn members of the public and, more particularly, plaintiff USA

NOWOSIELSKI, of the dangerous, hazardous and life-threatening hazard which they

caused and permitted to exist at the premises.

31. That as a result of defendants' negligence, carelessness and recklessness

without any fault or negligence on the part of plaintiff LISA NOWOSIELSKI contributing

thereto, plaintiff LISA NOWOSIELSKI was caused to sustain grievous, painful and

debilitating personal injury and bodily harm.

32. That by reason of the foregoing, plaintiff LISA NOWOSIELSKI was

compelled and did necessarily require medical aid and attention and did necessarily incur

34
 expenses for her care and treatment for the injuries that defendants, through their agents,

servants and/or employees, caused her to sustain as a result of their negligence,

carelessness and recklessness.

33. That as a result of the foregoing negligence, carelessness and recklessness

on the part of the defendants, plaintiff LISA NOWOSIELSKI has been damaged and is

entitled to recover compensatory damages as against defendants in the sum of FIVE

MILLION DOLLARS ($5,000,000,000.00).

AS AND FOR A SECOND CAUSE OF ACTION FOR NEGLIGENCE PER SE

34. Plaintiff repeats, reiterates and realleges each and every allegation contained

in paragraphs "1" through "33" inclusive, with the same force and effect as though more

fully set forth herein at length.

35. Defendants have a nondelegable duty to keep Auditorium 16 at the AMC

Loews Movie Theater in Stony Brook in a safe condition so as not to cause injury to

members of the general public using its facility and more particularly to plaintiff.

36. Defendants breached its nondelegable duty by having failed to keep

Auditorium 16 in a safe condition for members of the general public and more

particularly for plaintiff who was using its aisle stairs.

37. As a result of the foregoing, defendants are in violation of the New York

State Building Code, towit 12 NYCRR 36-2.6, 12 NYCRR 36-3.2 and 12 NYCRR 36-

3.4, as the same pertains to movie theaters.

38. That as a result of the foregoing negligence per se, defendants are

absolutely liable to plaintiff.

35
 39. That by reason of the foregoing, plaintiff LISA NOWOSIELSKI has been

damaged and is entitled to recover compensatory damages as against defendants, who

are absolutely and strictly liable for the same, in the sum of FIVE MILLION DOLLARS

($5,000,000,000.00).

WHEREFORE, plaintiff demands judgment, jointly and severally, against defendants

AMERICAN MULTI-CINEMA, INC. and AMC ENTERTAINMENT INC d/b/a AMC LOEWS

STONY BROOK 17 on the First and Second Causes of Action for compensatory damages

in the sum of FIVE MILLION DOLLARS ($5,000,000.00); together with the costs and

disbursements of this action.

Jury Demand

Plaintiff demands a jury trial.

Dated:Northport, New York

May22, 2012

J
By: . .../

36
 JS 44 (R<'"- O'lil !) CIVIL COVER SHEET
The JS 44 Cll'll con:r sheet_ and the information containo;:d_ herein neither replace .n'?rsupplemo;:nt the filing and service ofpleadings or othe_r pa~rs as req_uired by law, except as provided
by local rules of court_ nus fonn, approved by the JudJcml Conference of the Umted States m September !974, IS requrrcd for the use ot the Clerk of Court for the purpose of JtlltJatJng
the civil docker sheet. (SEE I.II.'STRUCTIONS 0/1!' NEXT PAGE OF THIS FOR,\1-)

I. (a) PLAINTIFFS DEFENDANTS

LISA NOWOSIELSKI AMERICAN MULTI-CINEMA, INC. and AMC ENTERTAINMENT INC.
d/b/a AMC LOEWS STONY BROOK 17

(b) ColU1ty of Residence of first Listed Plaintiff _SJ~LJ~f~F~OI.LLI~K"--------­ County of Residence of First Listed Defendant MISSOURI
(EXC£PT IN U.S. PL4IlVTIFF CASES) (IN US. PLAINTIFF CASES ONLY)
NOTE IN LAND CONDEMNATION CASES. USE THE LOCATION OF
THE TRACT OF L"'-.ND !NVOLVED.

ocSW r<f~Rm&?Erf{;So/RAAiS~ettPd Telephone Number) Attorneys (If Known)

P.O. BOX 575, NORTHPORT, NY 11768

631.262.7400
II. BASIS OF JURISDICTION (Place an ·-r·inOneBoxOnl;:J III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an '"X"' in One Box for Ptaimif]}
{For Diversity Cases Only) and One Box for Defendant)
0 I US Government 0 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Governme/ft Not a Party) Citizen of This State OJ: I 0 I Incorporated or Principal Place 0 4 0 4
of Business-In This State

0 2 U.S. Government C1J: 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 C>(
Defendant (indicate Citizenship ofParties in Item III) of Business In Another State

0 3 0 3 Foreign Nation 0 6 0 6

wi 'X"' in One Box

0 llO Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal28 USC 158 0 375 False Claims Act
0 120 Marine 310 Airplane 0 365 Personal lnjury - ofPmperty21 USC881 423 Withdrawal 0 400 State Reapponionment
0 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 usc !57 0 41 0 Antitrust
0 367 Health Carel
f~~~!iii!ii!i!i¥Jlffii'li!!'!i!§i~ 00
0 L40 Negotiable lnstrument Liability
0 150 320 Assault, Libel & Pharmaceutical 430 Commer-ce
450 Banks and Banking
& Slander Personallnjury 820 Copyrights 0 460 Deportation
0 !51 MedicaceAct 330 Federal Employers' Product Liability 830 Patent 0 470 Racketeer lnflueuced and
0 I 52 Recovery of Defaulted Liability 0 368 Asbestos Personal 840 Trademark Corrupt Organi7..ations
Srudeot Loans 340 Marine Injury Product 0 480 Consumer Credit

0
(Excl. VeteranS)
153 RewveryofOverpayment
ofVeteran's Benefits
345 Marine Product
Liability
350 Motor Vehicle
PERS~E~;i:~:~.,11, rc~~!~!~!!!~!i!!!,~~~~ffl~~iiif!!ij!!!ij!!~o
Lillhility

0 370 Other Fraud 0 Black (923)

0 861 HIA (1395ff)
862 Lung
0 850 Cabletsat TV
490 Set:urities!Comrnoditiesl
Exchange
0 160 Stockholders' Suits 355 Motor Vehicle 0 371 Truth in U:nding 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 0 890 Other Statutory Actions
0 190 Other Contract Product Liability 0 380 Other Personal 740 Railway Labor Act 864 SSID Title XVI 0 891 Agricultural Acts
0 195 Contract Product Liability 360 Other Personal Property Damage 751 Family and Medical 865 RSI {405(g)) 0 893 Environmental Matters
0 196 Franchise 0 385 Property Damage Leave Act 0 895 Freedom of Information
Product Liability 790 Other Labor Litigation Ao<

r
~~!:~~!~!!ii!i!
1
~~-~!'i!~~§.i!il!~~ti!l~f 791 Security
:J¥ Empl. RelActInc. 0
0 899 Administrative Procedure
896 .Arbitration
Act/Review or Appeal of
0 220 Foreclosure 441 Voting Agency Decision
0 230 Rent Lealie & Ejectment 442 Employment Habe.as CorptlS: 950 Constitutionality of
0 240 Torts to Land 443 Housing! 530 General State Statutes
0 245 Tort Product Liability Accommodations 535 Death Penalty
0 290 All Other Real Property 445 Amer. w/Disabilities- 540 Mandamus & Other
Employment 550 Civil Rights 463 Habeas Corpus -
446 Amer. w/Disabilities- 555 Prison-<:ondition Alien Dytainee
Othe< 560 Civil Detainee - (Prisoner Petition)
Conditions of 465 Other Innnigration
Confwement Actions

V. ORIGIN (Place an 'X" in One Box Only}

a . Tfllll.Sferred from
~I Original 2 Removed·from 0 3 Remanded from a 4 Remstated or 0 5 another district 0 6 Multidistrict
Proceeding State Court Appellate Court Reopened . Litigation

er se due to violation of NYS Buildin Code

VII. REQUESTED IN CHECK YES only if demanded in complaint:
COMPLAINT: JURY DEMAND: tX Yes 0 No
VIII. RELATED CASE(S) (See instructicns}:
IF ANY JUDGE DOCKET NUMBER

OATE SIGNATURE OF ATTORNEY OF RECORD - a

05/18/2012
fOR OFFICE USE ONLY

RECEIPT#
------ A.M:OUNT
----------
APPLYING IFP 37
---------
JUDGE
--------
MAG. JUDGE
------------
 EDNY Revision 12/2011
CERTIFICATION OF ARBITRATION ELIGIBILITY

Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,
exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is preswncd to be below the threshold amounl unless a
certification to the contrary is filed.

I, o. Daniel Engstrand. Jr.. Esq. , counsel for plainitffs do hereby certify that the above captioned civil action is
ineligible for compulsory arbitration for the following reason(s):

monetary damages sought are in excess of $150,000, exclusive of interest and costs,

0 the complaint seeks injunctive relief,

0 the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT- FEDERAL RULES CIVIL PROCEDURE 7.1

Identity any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all 'CaSeS that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3. I (a)
provides that ..A civil case is ''related" to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or
because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the
same judge and magistrate judge." Rule 50.3.1 (b) provides that" A civil case shall not be deemed "related" to another civil case merely because the civil
case: (A) involves identical legal issues, or (B) involves the same parties." Rule 50.3.1 (c) further provides that "Preswnptively, and subject to the power
of a judge to determine otherwise pwsuant to paragraph (d), civil cases shall not be deemed to be <'related" unless both cases are still pending before the
court."

I.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk
County;_N_o_ _ _ _ _ _ _ _ __

2.) If you answered "no" above:

a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof~ occur in Nassau or Suffolk
County?_Y_e_,__________________

b) Did -the events of omissions giving rise to the claim or claims~ or a substantial part thereof, occur in the Eastern
District?_Y_e_•-----'-'----------------

If your answer t6 question 2 (b) is "No," does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
Suffolk 'County, or, in an interpleader action~ does the claimant {or a majority of the claimants, if there is more than one) reside in Nassau
or Suffolk County?
(Note_:_A;-c_o_rp_o_r-at"io-n--,sh;-a-;1-;-1;-be-c-onsidered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

I am currently admitted in the Eastern District ofNew York and currently a member in good standing of the bar of this ;;ourt.
QS] Yes No 0
Are you currently the subject of any disciplinary action {s) in this or any other state or federal court?
0 Yes (If yes, please explain) QS] No

38
 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

LISA NOWOSIELSIK,

Plaintiff,
-against- Docket No.:

AMERICAN MULTI-CINEMA, INC. and AMC ENTERTAINMENT INC. d/b/a AMC

LOEWS STONY BROOK 17,

Defendants.

S' 'l~"etiS, SSUPLo•UIT 11 =I Sl"ll GS"E~ SIIEET

DO NIGER and ENGSTRAND LLP

ATTORNEYS AT LAW
12 Bayview Avenue·P.O. Box575·Northport,N.Y. 11768
(631)262-7400
Facsimile (631) 262-7422
www.DandEIAW.com

CPLR §2103(b)(5) Notice: Service of Papers by Electronic Means is Not Accepted

Pursuant to 22 NYCRR §130-1 .1-a, the undersigned, an attorney admitted to practice in the courts of New York SI<Ue,
certifies that, upon information and belief and reasonable inquiry, (1) the contents contained in the annexed document are
not frivolous and that (2) if the annexed document is an initiating pleading, ( i) the matter was not obtained through illegal
conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the
matter or sharing in any fee earned therefrom and that ( ii) if the matter involves potential claims for personal injury or
wrongful death, the matter was not obtained in violation of22 NYCRR §1200.41-a.
Dated: ................................................... Signttture .............................................- .............................................................................................

Print Signer's Natne ·································-····-····-·······························--··-···················· ..·····....

Service of a copy of the within is hereby admitted.
Dated:

Attorney(s) for

DONIGER am~ ENGSTRAND .liP

ATIORNEYS Kr LAW

A ..... -~···--·-.£ __ _

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52
ETHICS IN FEDERAL COURT

by

JAMES M. WICKS, ESQ.

Farrell Fritz, P.C.

Uniondale

53
54
 October 23, 2013

ETHICS IN FEDERAL COURT

By James M. Wicks1

Proceedings for a civil action commenced in federal district court (or removed to federal

court from state court) are governed by the Federal Rules of Civil Procedure (FRCP). The

individual district courts also have local rules, and sometimes judges’ individual rules, which

counsel must consult and follow carefully. Once in federal court, the practitioner is subject not

only to the New York State Rules of Professional Conduct, but the rules and grievance

committee of that particular court.

I.

Admission to Practice

Before making a motion or formally appearing before a court, counsel must first be

admitted to practice in that court. The attorney admissions process in the federal system is fairly

straightforward. In many instances, an attorney admitted to practice law in at least one United

States jurisdiction may gain admission to any federal district court by filling out the requisite

paperwork and paying an admission fee.

I. Southern and Eastern Districts of New York (Join Local Civil Rule 1.3):

1. Members of the New York State Bar (or members of the United States District
Court in Connecticut or Vermont and of the bar of the State in which such district
court is located)

 file application for admission in electronic form on the court’s website. This one
application will be utilized both to admit and then to provide the applicant to the bar of
this Court with a password and login for use on the Court’s Electronic Case Filing (ECF)
system.

 The applicant shall (a) complete the application on-line, (b) submit the application
electronically, (c) print and sign a copy of the application, and (d) file the printed

1
Mr. Wicks is a partner with the law firm of Farrell Fritz, P.C.
1
55
 application and fee with the Clerk, together with a certificate(s) of good standing and a
supporting affidavit(s).

 After submitting the application in electronic form, each applicant for admission shall file
with the Clerk, at least ten (10) days prior to hearing, the signed paper copy of the
verified written petition for admission stating:
o applicant’s residence and office address;

o the time when, and courts where, admitted;

o applicant’s legal training and experience;

o whether applicant has ever been held in contempt of court, and, if so, the nature
of the contempt and the final disposition thereof;

o whether applicant has ever been censured, suspended, disbarred or denied

admission or readmission by any court, and, if so, the facts and circumstances
connected therewith;

o that applicant has read and is familiar with (a) the provisions of the Judicial Code
(Title 28, U.S.C.) pertaining to the jurisdiction of, and practice in, the United
States District Courts; (b) the Federal Rules of Civil Procedure; (c) the Federal
Rules of Criminal Procedure; (d) the Federal Rules of Evidence; (e) the Local
Rules of the United States District Courts for the Southern and Eastern Districts
of New York; and (f) the New York State Rules of Professional Conduct.

o that applicant will faithfully adhere to all rules applicable to applicant’s conduct in
connection with any activities in this Court.

 The petition must be accompanied by:

o a certificate of the clerk of the court for each of the states in which the applicant
is a member of the bar, which has been issued within thirty (30) days of filing and
states that the applicant is a member in good standing of the bar of that state
court; and

o an affidavit of an attorney of this Court who has known the applicant for at least
one year, stating when the affiant was admitted to practice in this Court, how long
and under what circumstances the attorney has known the applicant, and what
the attorney knows of the applicant's character and experience at the bar.

The petition shall be placed at the head of the calendar and, on the call thereof, the attorney
whose affidavit accompanied the petition shall personally move the admission of the applicant. If
the petition is granted, the applicant shall take the oath of office and sign the roll of attorneys.

2
56
 2. A member in good standing of the bar of either the Southern or Eastern District of
New York may be admitted to the bar of the other district without formal
application, upon:

 filing in that district a certificate of the Clerk of the United States District Court for
the district in which the applicant is a member of the bar, which has been issued
within thirty (30) days of filing and states that the applicant is a member in good
standing of the bar of that Court and

 upon taking the oath of office, signing the roll of attorneys of that district, and
paying the fee required in that district.

3. A member in good standing of the bar of any state or of any United States District
Court may be permitted to argue or try a particular case in whole or in part as
counsel or advocate:

 upon motion (which may be made by the applicant); and

 upon filing with the Clerk of the District Court a certificate of the court for each of the
states in which the applicant is a member of the bar, which has been issued within
thirty (30) days of filing and states that the applicant is a member in good standing of
the bar of that state court.

 Only an attorney who has been so admitted or who is a member of the bar of this
Court may enter appearances for parties, sign stipulations or receive payments upon
judgments, decrees or orders.

If a lawyer resigns his or her license to practice of a state bar, they must, then within 30

days of such resignation, file affidavit with Clerk of Court (EDNY or SDNY) stating that such

person remains eligible to be admitted to the bar of EDNY/SDNY pursuant to other provisions of

this subsection (such as because he is still a member of the bar of another eligible state and,

where applicable, a corresponding district court). If the lawyer does not file such an affidavit,

then it is deemed a voluntary resignation from the bar of the EDNY/SDNY. Even if one resigns

from the federal bar, the court is not deprived of jurisdiction to impose discipline.

II. Other Courts:

Other district courts have similar rules (see WDNY Local Rule 83.1; NDNY Local Rule

83.1) In addition to district court admission, if one intends to practice before the Second Circuit,

3
57
separate admission is required there as well. “An attorney who appears on behalf of a party or

an amicus curiae in any capacity must be admitted to practice before this court, or have pending

an application for admission, and must file a Notice of Appearance.” U.S. Court of Appeals for

the Second Circuit Local Rule 46.1.

III. Admission Pro Hac Vice:

A lawyer not admitted in the federal courts may nonetheless seek pro hac vice

admission, that is, admission to practice before that court for a particular cause or case. Such

an application must be filed by an existing member in good standing of the federal court. See

EDNY/SDNY Join Local Rules 1.3(c); WDNY Local Rule 83.1(c); NDNY Local Rule 83.1(d).

II.

Attorney Discipline
I. Attorney Disciple in New York’s Federal District Courts

A. Disciplinary Bodies in New York Federal Courts

Attorney discipline matters fall under the direction of the Committee on Grievances for

each of the courts. The Committee is comprised of judges appointed by Chief Judge, and a

panel of attorneys to advise or assist the Grievance Committee. The Committee may

investigate complaints, may prepare charges, or may serve as members of hearing panels.

SDNY/EDNY Joint Local Rule 1.5; NDNY Local Rule 83.4; WDNY Local Rule 83.3

4
58
 B. Grounds for Discipline

The Local Rules set out the grounds for discipline that may be imposed, which must be

established “by clear and convincing evidence”:

 convicted of a felony or misdemeanor in any federal court, or in a court of any state or

territory;

 Any member of the bar of this Court has been disciplined by any federal court or by a
court of any state or territory;

 Any member of the bar of this Court has resigned from the bar of any federal court or of
a court of any state or territory while an investigation into allegations of misconduct by
the attorney was pending.

 Any member of the bar of this Court has an infirmity which prevents the attorney from
engaging in the practice of law.
 In connection with activities in this Court, any attorney is found to have engaged in
conduct violative of the New York State Rules of Professional Conduct.

 In interpreting the Code, in the absence of binding authority from the United States
Supreme Court or the United States Court of Appeals for the Second Circuit, this Court,
in the interests of comity and predictability, will give due regard to decisions of the New
York Court of Appeals and other New York State courts, absent significant federal
interests.

 Any attorney not a member of the bar of this Court has appeared at the bar of this Court
without permission to do so.

C. Types of Discipline

The nature of discipline is broad, and is dependent on a variety of factors, and consist of

one or more of the following: a letter of reprimand or admonition, censure, suspension, or an

order striking the name of the attorney from the roll of attorneys admitted, or an order precluding

the attorney from again appearing in the Court. Needless to say, the authority and scope of

discipline is broad.

5
59
 D. Procedural Framework

The EDNY/SDNY Local Rules also set out an elaborate procedural framework for

grievance charges. Once a charge has been made against an attorney, the Committee may

appoint an attorney designee to investigate the charges. The Committee must then serve upon

the allegedly offending attorney, by certified mail, return receipt requested, a statement of

charges alleging a ground for discipline or other relief and an order by the Committee on

Grievances directing the attorney to show cause in writing why discipline or other relief should

not be imposed.

E. Duty of Attorney to Report Discipline

Effective February 25, 2013, Chief Judge Loretta Preska filed a new amendment to the

EDNY/SDNY local rules, requiring attorneys disbarred, censured or suspended to self-report

and notify courts about the disciplinary action, which also applies to attorneys who resign for

allegations of misconduct while investigations against them are still pending.

The rule reads as follows:

 In all cases in which any federal, state or territorial court, agency or tribunal has entered
an order disbarring or censuring an attorney admitted to the bar of this Court, or
suspending the attorney from practice, whether or not on consent, the attorney shall
deliver a copy of said order to the Clerk of this Court within fourteen days after the entry
of the order.

 In all cases in which any member of the bar of this Court has resigned from the bar of
any federal, state or territorial court, agency or tribunal while an investigation into
allegations of misconduct against the attorney was pending, the attorney shall report
such resignation to the Clerk of this Court within fourteen days after the submission of
the resignation.

 In all cases in which this Court has entered an order disbarring or censuring an attorney,
or suspending the attorney from practice, whether or not on consent, the attorney shall
deliver a copy of said order within fourteen days after the entry of the order to the clerk

6
60
 of each federal, state or territorial court, agency and tribunal in which such attorney has
been admitted to practice.

a. May promptly present the material under seal to the Court for resolution of the
claim.

III.

RECENT ETHICS OPINIONS IN NEW YORK’S FEDERAL COURTS

I. Attorney Deceit:

 In re Filosa and In re Gilly

o Facts:
 Thompson Wigdor & Gilly--where Gilly was partner and Filosa associate--
represented a plaintiff in an employment discrimination case.

 As part of plaintiff’s damages case, TWG obtained an expert report, which

included a calculation of loss of future earnings, and the report assumed
that plaintiff would remain unemployed for a specified time into the future.

 Prior to defendant’s deposition of the plaintiff, the plaintiff received an

offer of employment at a salary higher than she had received while
employed by defendant. The expert’s report was, therefore, outdated and
inaccurate.

 Nevertheless, Gilly and Filosa failed to disclose plaintiff’s newfound

employment to defendant’s counsel, and instead served the inaccurate
expert report upon defendant’s counsel in an attempt to leverage a
favorable settlement on plaintiff’s behalf.

o In re Gilly, 2013 WL 433537 (S.D.N.Y. Feb. 5, 2013)

 The Court found that Gilly, the supervising partner, had violated several of
the New York Rules of Professional Conduct, including:

 Rule 3.3(a)(3); Rule 3.4(a)(4); and Rule 4.1, which prohibit the use
of false evidence.

 Rule 5.1(b)(2) and (d)(1), which made Gilly responsible for

Filosa’s actions

 Result: Acknowledging, as mitigating factors, Respondent’s twenty years

of service to the bar, his self-reporting to the District Court judge and to
the First Department Disciplinary Committee, his expressions of remorse,
and “the serious impact that his misconduct has already had on his legal
career,” the Court suspended Gilly for one year.
7
61
 o In re Filosa, 2013 WL 433347 (S.D.N.Y. Feb. 5, 2013)

 Filosa, the associate, attempted to avoid culpability by arguing that he

“relied on Mr. Gilly’s reasonable resolution of arguable questions of their
professional duties.”

 The Court rejected this excuse for several reasons, including that Rule
5.2(b) only protects a lawyer’s actions in reliance upon a supervisory
lawyer’s reasonable resolution of an arguable question of professional
duty,” and that Gilly’s resolution was not “even remotely reasonable.”

 Result: Acknowledging, as mitigating factors, Respondent’s relative

youth, expressions of remorse, absence of a prior disciplinary record and
the fact that, at least in some instances, he was acting at the specific
direction of a supervising lawyer, the Court suspended Filosa for one year

 In re Peters, 2013 WL 1496942 (S.D.N.Y. Apr. 15, 2013)

o Facts: In a case before Judge Baer, Respondent (a) violated the Court’s
Confidentiality Order by copying deposition transcripts and using them in a
different action pending in Massachusetts, and (b) instructing a first-year
associate at her firm to place handwritten marks on deposition transcripts so that
she could claim they constituted “attorney work product.” The Committee initially
determined to disbar Respondent, and the Magistrate Judge recommended a
five-year suspension.

o The Court deemed the charge of instructing her associate to render deposition
transcripts “attorney work product” to be “her most serious transgression.”

o Respondent attempted to explain this transgression by claiming that her

instructions to her first-year associate were “joking,” mocking,” or “sarcastic.” The
Court found these claims incredible.

o Result: While granting deference to the Magistrate Judge’s recommendation of a

five-year suspension, the Court handed down a seven-year suspension based, in
part, on the following:

 “Ms. Peters’ most serious failing involves the corruption of a young and
inexperienced lawyer, over whom she had power and authority, and
whom she ordered to commit conduct that could have ended with his own
disciplinary hearing. To abuse a fledgling attorney strikes the members of
the Committee as particularly heinous. Indeed, in the eyes of the
Committee, Ms. Peters has compounded her original serious error by
persisting in treating her order…as a ‘joke’ and by branding [the first-year
associate] a liar. She exhibits no remorse for her inappropriate conduct;
rather, she arrogantly persists in trying to salvage her reputation at the
expense of the unfortunate [first-year associate]—branding him and
others at the Dorsey firm as liars when it is she who has consistently lied,
both about what she did and about why she did it.”
8
62
II. Failure to Comply with Scheduling Orders
and Briefing Schedules, and Deficient Briefing:

 In re Rudrakumaran, 516 Fed.Appx. 9 (2d Cir. Feb. 15, 2013)

o Facts: Respondent defaulted on scheduling orders in 27 cases, resulting in their

dismissal (although eight of these were later reinstated), failed to withdraw 17
cases despite knowing that his clients did not wish to pursues those cases, and
untimely filing documents

o Result: Second Circuit, among other things, publicly reprimanded Respondent

and order him to attend 8 hours of CLE classes on the subject of law office
management.

o Respondent acknowledged that reprimand was warranted, but disputed several

of the committee’s findings.

o For example, Respondent challenged the Committee’s finding that he acted

“recklessly” by failing to file a brief after having received two extensions to do so,
particularly where the Court had stated that “any further extension request…will
not be granted absent extraordinary circumstances.”

o Respondent conceded that he was negligent but challenged the finding of

recklessness, arguing that under New York law, recklessness requires evidence
of the actor’s “conscious indifference to the outcome,” which he denied.

o Noting that the definition o “recklessness” varies depending on the forum and
type of proceeding, the Second Circuit upheld the Committee’s finding, since
Respondent “knew the relevant facts and unreasonably failed to appreciate the
high degree of risk involved.”

 In re DeMarco, 2013 WL 5495314 (2d Cir. Oct. 4, 2013)

o Facts: Respondent failed to timely file petitions for review, briefs, and other court
documents in 23 cases, and that, in a case pending in the Second Circuit, he
declined to brief an issue that the court specifically directed him to brief.

o Respondent, and some of his employees, testified that some of respondent’s

defaults were caused by the failures of his employees to timely pass along
incoming mail, notify Respondent of deadlines or other directives, or to timely file
documents.

o As to some of the untimely filings, Respondent testified that he was not the lead
attorney on the case and therefore should not bear primary responsibility for their
failures. The Court found that even in those cases, Respondent shared direct
responsibility, and counsel of record “cannot allow lengthy periods of time to pass
without periodic review” of the dockets.” Noting that the “degree of diligence that
is due depends upon the circumstances,” the Court held that Respondent’s
“failure to properly monitor the dockets of the cases…constituted a lack of due

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 diligence on his part, whether or not anyone else also had any such
responsibility.”

o As to the failure to brief issues as directed by the Second Circuit, Respondent

claimed that he was no the lead attorney on the case and therefore the failure to
brief certain issues should not fall on him. The Court rejected this argument,
noting that Respondent had signed the briefs in question and, as such, certified
that they were accurate and in compliance with the rules.

o Result: The Court publicly reprimanded Respondent, as opposed to the harsher

penalty of suspension. The Court, in reaching this conclusion, noted that “[a]
public reprimand, particularly when it takes the form of a published decision of
this Court that is highly critical of an attorney’s conduct, is far more than a ‘slap
on the wrist.’”

 In re Payne, 707 F.3d 195 (2d Cir. Jan. 25, 2013)

o Facts: Respondent was found to have (a) defaulted on scheduling orders in 14

cases, resulting in their dismissal (although two were reinstated), (b) withdrew
appeals only after his briefing deadlines had passed, and (c) filed a deficient
brief. The Committee recommended public reprimand; Respond argued for
private reprimand.

o Noting that “[n]either the Federal Rules of Appellate Procedure nor this Court’s
local rules specify the format or contents of an attorney’s response to a
Committee report recommending that the Court impose disciplinary or other
measures,” the Court did state that “attorneys must adhere to several basic,
commonsense rules.”

o The Court noted that Respondent failed to follow two of those rules:
 that “evidence and arguments may not be raised in the response filed in
this Court unless they have first been raised before the Committee,”
except for good cause; and
 that “all arguments and statements of fact must be supported by proper
citations to the record.”

o Although the Court did “not penalize [Respondent] for his lack of citations, since
no explicit requirement is found in our rules, or in earlier decisions of the Court,”
the Court nonetheless declared that “this opinion serves as notice to the bar that
proper citations are required in all future filings in disciplinary proceedings and
that their absence may result in a finding of waiver or other adverse
consequence.”

o Dismissing Respondent’s excuses for defaulting on scheduling orders, the Court

stated that “the Committee members who presided over the hearing in this case,
who are experienced attorneys appointed by the judges of this Court, should be
accorded the same deference [as district judges would be] for their credibility
determinations.”

o Result: The Court publicly reprimanded Respondent.

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  Shiu v. New Peking Taste Inc., No. 11-CV-1175 (NGG) (RLM) 2013 WL 1223700
(E.D.N.Y. May 28, 2013)

Facts: A magistrate judge prepared a Report and Recommendation to the Court proposing the
award of attorneys’ fees to the plaintiffs and the referral of the defendant’s attorneys to the
Grievance Committee. Through the course of the litigation, the defendant’s counsel was
replaced several times, first by an associate from Jung & Associates (“Attorney 1”). An attorney
from Neimann & Wang Associates (“Attorney 2”) subsequently moved to replace Attorney 1, but
the motion was denied due to an inability to provide proof that Attorney 2 was admitted in the
Eastern District. Thus, Attorney 1 was to remain as the defendant’s attorney, but failed to
respond to subsequent discovery requests and attend a pre-motion conference.

The court postponed the conference and requested that Attorney 1 and a principal from
Niemann & Wang (“Attorney 3”) appear before the court the next day. Attorney 1 complied, but
a paralegal was sent from Niemann & Wang. At the next ordered appearance, a principal of
Jung & Associates (“Attorney 4”) appeared before the court along with Attorney 1 and Attorney
3. However, it was later determined that Attorney 4 was also not admitted in the Eastern
District.

In response, the plaintiffs moved for attorneys’ fees, which were appropriate under FRCP 16(f)
for “failure to appear at a conference with the court or failure to be substantially prepared and
participate.” Attorney 4 objected to being held jointly and severally liable, because the other
Attorneys were responsible for some of the delays. The court found the argument to lack merit,
because of Jung & Associates affiliation with Attorney 1 and the defendant. However, the court
found that Attorney 4 should not be held personally liable. It further concluded that Attorney 4
should not be referred to the disciplinary committee. Attorney 4 was not admitted to practice in
the Eastern District and did not enter an appearance, albeit the disturbing conduct before the
court.

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 III. Plagiarism:

Interesting decision rendered by Judge Hurley in the EDNY on the issue of plagiarism in
briefs. Lohan v. Perez, No. 11 CV 5413 (DRH) (ARL), 2013 U.S. Dist. Lexis 24049 (E.D.N.Y.
Feb. 21, 2013).

Facts: The plaintiff, Lindsay Lohan, brought an action in the Southern District against Armando
Christian Perez, a.k.a. Pitbull, for the use of her name without consent. Finding that the plaintiff
failed to allege a cause of action, the court dismissed the claim and granted the defendant
permission to file a motion to impose sanctions against the plaintiff’s attorneys for “frivolous
claims in bad faith and committing extensive plagiarism” in a document filed with the court.

In its decision, the court declined to impose sanctions based on alleged frivolous claims and
false factual statements made by the plaintiff. Given the current lack of precedent available in
New York, the plaintiff’s assertions were not so frivolous as to justify sanctions. Additionally, the
statement found to be false was never required to be clarified by the court or the defendants.

As to the sanctions for plagiarism, the defendants provided ample evidence that portions of
plaintiff’s motion in opposition was directly taken from website articles without any
acknowledgement provided. Additionally, an entire portion of the plaintiff’s motion was
extracted from a legal memorandum of an unrelated case. In response to the allegations, the
plaintiff’s attorney claimed that she accidentally submitted a draft of the opposition and
contacted the Defendant’s attorney to seek permission to submit an amendment that would
correct any plagiarism. However, the opposing counsel submitted evidence to the court
showing that no such correction would have occurred. The court sanctioned the plaintiff’s
attorney for $750 for false representation.

Next, the court held that the offense would likely violate Rule 8.4 of the Rules of Professional
Conduct for “dishonesty, fraud, deceit or misrepresentation” by proffering another attorney’s
work product as her own. Although there was a dispute between the plaintiff’s attorneys as to
who was responsible for the plagiarism, the court chose to impose a fine of $750 on the attorney
responsible for signing the opposition.2 Finally, although the sanctions appeared insubstantial,
“the court [had] accounted for (and [did] not underestimate) the negative impact on [the
attorney’s] reputation and livelihood that [would] inevitably arise from her involvement in the
situation.”

2
Similar to plagiarism, courts in other jurisdictions have recently turned their attention to “ghost-writing”of
briefs by attorneys and the associated ethical and professionalism implications with respect to the
undisclosed attorney. See Evangelist v. Green Tree Servicing, LLC, Civ. No. 12–15687, 2013 WL
2393142 (E.D. Mich. May 31, 2013); In re Smith, Nos. 12–11603, 12–11857, 2013 WL 1092059 (E.D.
Tenn. Jan. 30 2013); Chriswell v. Big Score Entertainment, LLC, No. 11 C 00861, 2013 WL 315743 (N.D.
Ill. Jan. 28, 2013).
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 MOTION PRACTICE

by

MICHAEL CARDELLO III, ESQ.

Moritt Hock & Hamroff LLP

Garden City

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MORITT HOCK & HAMROFF LLP

Strength In Partnership

MOTION PRACTICE

By Michael Cardello III, Esq.

400 Garden City Plaza ● Garden City, NY 11530 ● Tel: (516) 873-2000 ● Fax: (516) 873-2010 ● www.moritthock.com

Overview

Motion Practice
I. Temporary Restraining Orders: F.R.C.P. 65
II. Preliminary Injunctions: F.R.C.P. 65
III. Motions To Dismiss: F.R.C.P. 12(b)(6)
IV. Motion for Judgment on the Pleadings: F.R.C.P. 12(c)
V. Motion to Dismiss for Lack of Subject Matter Jurisdiction: F.R.C.P.
12(b)(1)
VI. Motion for Summary Judgment: F.R.C.P. 56
VII. Oral Arguments

I. Temporary Restraining Orders: F.R.C.P. 65

A. Notice:
1. A party seeking a Preliminary Injunction will typically also make an
application for a Temporary Restraining Order in order to preserve
the status quo until the Preliminary Injunction is decided.,
2. In most cases, the moving party is required to provide the non-
moving party with notice prior to the making of the application.
3. Courts are reluctant to grant a TRO without notice, because to do so
would have a substantial impact on the case where the record is
incomplete.
4. Thus, only in the rare occasions should a party move for an ex parte
TRO.

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I. Temporary Restraining Orders: F.R.C.P. 65

B. The Elements:
1. Irreparable harm; and either
2. Likelihood of success on the merits; or
3. Sufficiently serious questions going to the merits to make them a fair
ground for litigation; and
4. A balance of hardships tipping decidedly toward the party requesting
the preliminary relief.

I. Temporary Restraining Orders: F.R.C.P. 65

C. Irreparable Harm:

1. In general, irreparable injury is an injury for which the

court could not compensate the movant should the
movant ultimately prevail. See Int'l Bhd. of Teamsters v.
Local 810, 19 F.3d 786, 794 (2d Cir. 1994); Arbitron Co.
v. Phoenix Broadcasting Corp., No. 97-CV-4355, 1997
U.S. Dist. LEXIS 11516 at *10 (S.D.N.Y. Aug. 6, 1997).

I. Temporary Restraining Orders: F.R.C.P. 65

2. What Constitutes Irreparable Harm:

a) Monetary or other losses that are deemed to be incalculable or

immeasurable. See Standard & Poor’s Corp. v. Commodity
Exch., Inc., 683 F.2d 704, 711–712 (2d Cir. 1982).
b) Possible bankruptcy. Seide v. Crest Color, Inc., 835 F. Supp.
732, 738 (S.D.N.Y. 1993).
c) Deprivation of constitutional rights. See Abdul Wali v.
Coughlin, 754 F.2d 1015, 1026–1028 (2d Cir. 1985).

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I. Temporary Restraining Orders: F.R.C.P. 65

2. What Constitutes Irreparable Harm:

d) Deprivation of statutory rights. See United States v. Nutri-

Cology, 982 F.2d 394, 398 (9th Cir. 1992).
e) Loss of an opportunity to pursue a tender offer. Martin-
Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.
1982).
f) Disclosure of confidential information. See JAK Prod., Inc. v.
Wiza, 986 F.2d 1080, 1084 (7th Cir. 1993).

I. Temporary Restraining Orders: F.R.C.P. 65

3. What's Not Irreparable Harm:

a) Lost income or other economic loss that is calculable and
compensable by monetary damages. See Borey v. National
Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991).
b) Discharge from employment. See Sampson v. Murray, 415
U.S. 61, 89, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974).
c) Litigation costs. See Renegotiation Bd. v. Bannercraft Clothing
Co., 415 U.S. 1, 24, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974).

I. Temporary Restraining Orders: F.R.C.P. 65

3. What's Not Irreparable Harm:

d) Cost of compliance with government regulation.
e) Threat of civil litigation or criminal prosecution. See O’Shea
v. Littleton, 414 U.S. 488, 502, 94 S. Ct. 669, 38 L. Ed. 2d
674 (1974).
f) Remote or speculative harm (must be imminent). See JSG
Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.
1990).

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I. Temporary Restraining Orders: F.R.C.P. 65

4. Timing:

When a Temporary Restraining Order is granted

with notice and an evidentiary hearing has not
been held, then the TRO will be for a limited
duration until an evidentiary hearing can be held.

I. Temporary Restraining Orders: F.R.C.P. 65

5. Temporary Restraining Orders Binds:

a) Parties to the action;

b) Their officers, agents, employees, and attorneys; and
c) Those persons in active concert or participation with
them who receive actual notice of the TRO.

I. Temporary Restraining Orders: F.R.C.P. 65

B. Ex Parte Temporary Restraining Orders:

1. As per F.R.C.P. 65(b)(1), the Court can issue a TRO without
notice if the moving party presents an Affidavit showing:
a) that immediate, irreparable harm will occur before the
opposing party can be heard;
b) what efforts were made to give notice (if any); and
c) why notice should not be required.

2. A motion for a TRO without notice must be supported by

affidavits or a verified complaint.

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I. Temporary Restraining Orders: F.R.C.P. 65

3. F.R.C.P. 65(b)(2): any temporary restraining order issued without

notice automatically expires within 14 days.
a) This can have serious practical consequences if a case is removed to
federal court after a temporary restraining order is issued. That is
because once a case has been removed, "federal rather than state
law governs the future course of proceedings, notwithstanding state
court orders prior to removal." Granny Goose Foods, Inc. v. Bhd. of
Teamsters, et al., 415 U.S. 423, 437 (1974). Therefore, an "ex parte
temporary restraining order issued by a state court prior to removal
remains in force after removal no longer than it would have
remained in effect under state law, but in no event does the order
remain in force longer than the time limitations imposed by Rule
65(b)." Id. at 439-440.

I. Temporary Restraining Orders: F.R.C.P. 65

b) More recently, the E.D.N.Y. ruled that the time limitations of

Rule 65(b) also apply to state court temporary restraining orders
that were issued on notice. See Carrabus v. Schneider, 111 F.
Supp. 2d. 204, 210 (E.D.N.Y. 2000); see also John W. Williams,
Inc. v. United Food & Commercial Workers Local 342, AFL-
CIO, CLC, No. 10 Civ. 6708, 2011 U.S. Dist. LEXIS 56268 at
*2 (S.D.N.Y. May 25, 2011).
c) A temporary restraining order issued by a state court will expire
after 14 days if the case is removed to federal court.

I. Temporary Restraining Orders: F.R.C.P. 65

4. In Federal Court, a bond is technically required for both a

preliminary injunction and a temporary restraining order.
a) F.R.C.P. 65(c): "The court may issue a preliminary
injunction or a temporary restraining order only if the
movant gives security in an amount that the court
considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or
restrained." (emphasis added).

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I. Temporary Restraining Orders: F.R.C.P. 65

b) However, the Second Circuit has held that Rule 65(c)

"gives the district court wide discretion to set the amount
of a bond, and even to dispense with the bond requirement
where there has been no proof of likelihood of harm, or
where the injunctive order was issued to aid and preserve
the court's jurisdiction over the subject matter involved."
Doctor's Associates, Inc. v. Distajo, 107 F.3d 126, 136 (2d
Cir. 1997) (internal quotation marks and citation omitted).

II. Preliminary Injunctions

A. F.R.C.P. 65 – The Elements:

1. Irreparable harm; and either
2. Likelihood of success on the merits; or
3. Sufficiently serious questions going to the merits to make
them a fair ground for litigation; and
a) "Serious questions": Permits a court to grant an injunction where
it cannot determine the merits with certainty, "but where the
costs outweigh the benefits of not granting the injunction."
Citigroup Global Markets, Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).

II. Preliminary Injunctions

b) Some have argued that the "serious questions" standard

was abrogated by a Supreme Court case where the court
stated that an injunction should only be granted if the
plaintiff establishes "that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public
interest." Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008).

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II. Preliminary Injunctions

c) But the Second Circuit has held that the "serious

questions" standard remains in place even after Winter and
its progeny. See, e.g., Citigroup Global Markets, Inc., 598
F.3d at 38; see also Lam Yeen Leng v. Pinnacle
Performance Ltd., No. 11-5150-cv, 2012 U.S. App. LEXIS
7118, at *4 (2d Cir. April 10, 2012) (applying "serious
questions" standard).

II. Preliminary Injunctions

A. F.R.C.P. 65 – The Elements (cont.):

4. A balance of hardships tipping decidedly toward the party

requesting the preliminary relief.

II. Preliminary Injunctions

B. Trial on the Merits

1. F.R.C.P. 65(a)(2): The court is permitted to hold a trial on the
merits and consolidate it with the hearing on a motion for a
preliminary injunction.
2. The District Court has "broad discretion" in deciding whether
to consolidate an injunction hearing with a trial on the merits,
and an order of consolidation will be affirmed on appeal
"absent a showing of substantial prejudice in the sense that a
party was not allowed to present material evidence." Abraham
Zion Corp. v. Lebow, 761 F.2d 93, 101 (2d Cir. 1985).

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II. Preliminary Injunctions

C. Appealability

1. The grant or denial of a preliminary injunction is appealable

as of right while the grant or denial of a temporary restraining
order is not. See 28 U.S.C. § 1292(a)(1); Browdy v. Lantz,
No. 05-110-cv, 2006 U.S. App. LEXIS 13530, at *2 (2d Cir.
May 23, 2006).

II. Preliminary Injunctions

2. However, the Second Circuit has held that the grant or denial
of a temporary restraining order may be appealed if it "'might
have a serious, perhaps irreparable, consequence, and ... can
be effectually challenged only by immediate appeal.'"
Thenjitto v. City of New York, No. 96-9701, 1997 U.S. App.
LEXIS 28524, at *2 (2d Cir. Oct. 9, 1997) (quoting Carson v.
Am. Brands, Inc., 450 U.S. 79, 84 (1981)); see also First
Eagle SoGen Funds, Inc. v. Bank for Intern. Settlements, 252
F.3d 604, 607 (2d Cir. 2001) (same).

II. Preliminary Injunctions

3. The grant of a temporary restraining order by a federal court

may be appealed if the order "amounts to a grant of
preliminary injunctive relief." Truck Drivers Local Union
No. 807, Intern. Broth. of Teamsters v. Bohack Corp., 541
F.2d 312, 316 (2d Cir. 1976) ("When the district court
extended for an indefinite period of time the terms of the
temporary restraining order . . . and refused to dissolve it, the
order became appealable as the grant of a preliminary
injunction.").

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II. Preliminary Injunctions

D. Notice:

1. As Rule 65(a)(1) does not contain a specific notice

requirement, the default notice provision of Rule 6(c)(1)
requires as least 14 days notice for preliminary injunctions.

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

A. Time to File:
1. A Motion to Dismiss under F.R.C.P. 12(b)(6) must be made
before serving the Answer. F.R.C.P. 12(b).
2. By contrast, in New York, a Motion to Dismiss under CPLR
3211(a)(7) may be filed at any time, including after the filing
of the Answer.

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

B. Standard of Law:
1. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955
(2007) – Landmark Decisions that Changed the Standard of
Law:
a) The court must accept the plaintiff's factual allegations as true
and draw all reasonable inferences in plaintiff's favor.
b) A complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.

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III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

c) Determining whether a complaint states a plausible claim for

relief is a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.
d) A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
e) Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.
f) Plaintiffs must nudge their claims across the line from
conceivable to plausible.

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

2. Standard Prior to Iqbal and Twombly: Conley v. Gibson, 355

U.S. 41, 78 S. Ct. 99 (1957): A Motion to Dismiss under Rule
12(b)(6) will not be granted unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.
3. Compare to NY Standard under CPLR 3211(a)(7):
a) The Court accepts the facts alleged in the Complaint as
true and accords the plaintiff every favorable inference.
EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 799
N.Y.S.2d 170, 175 (2005).

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

b) However, allegations consisting of bare legal conclusions, as well

as factual claims either inherently incredible or flatly
contradicted by documentary evidence, are not presumed to be
true and accorded every favorable inference. Biondi v. Beekman
Hill House Apt. Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308
(1st Dep't. 1999), aff'd., 94 N.Y.2d 659 (2000).
c) The Court should dismiss a claim if the plaintiff fails to state any
cognizable grounds for relief or based on evidence offered by the
moving party that flatly contradicts the plaintiff's allegations and
forecloses the possibility of relief. Quintas v. Pace Univ., 23
A.D.3d 246, 247, 804 N.Y.S.2d 67 (1st Dep't. 2005); Ullmann v.
Norma Kamali, Inc., 207 A.D.2d 691, 692, 616 N.Y.S.2d 583 (1st
Dep't. 1994).

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III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

C. Use of Affidavits
1. The purpose of a Rule 12(b)(6) Motion is to test the legal
sufficiency of the pleader's claims for relief. Thus, the Court
generally may consider only the pleadings and incorporated
exhibits in resolving the motion – any extraneous materials
must be excluded. Friedl v. City of New York, 210 F.3d 79,
84 (2d Cir. 2000); O'Brien v. National Property Analysts
Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989).

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

C. Use of Affidavits (cont.)

2. When an affidavit or other matters outside the pleading

are presented to the court in a Motion to Dismiss, the
Motion must be treated as one for Summary Judgment
under Rule 56. Moore's Federal Rules Pamphlet
§12.6[1].

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

D. Use of Exhibits

1. The Court may consider exhibits where a plaintiff has

relied on the terms and effect of a document in drafting
the complaint and, therefore, that document is integral to
the complaint, even if that document has not been
formally incorporated by reference. Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).

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III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

E. Cross Motions for Leave to Amend

1. When a party moves to dismiss a complaint, the non-
moving party may submit papers in opposition to the
motion as well as cross-move for leave to file an
amended pleading.
2. The cross-motion permits a party to request, as an
alternative to dismissal, that the party be allowed to
amend the pleading to sufficiently assert their claims.

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

E. Cross Motions for Leave to Amend

3. The cross-motion for leave to amend need not be filed
separately from opposition to the Motion to Dismiss. See
e.g., Silverstein v. Lawrence U.F.S.D. No. 15 et al., No.
10 Civ. 993, 2011 U.S. Dist. LEXIS 34200 (E.D.N.Y.
Feb. 16, 2011)(SJF)(WDW); Fitzgibbons v. City of
Oswego, No. 10 Civ. 1038, 2011 U.S. Dist. LEXIS
143772 (N.D.N.Y. Dec. 13, 2011).

III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

F. Conversion to Motion for Summary Judgment

1. If, on motion under Rule 12(b)(6) …, matters outside the
pleadings are presented to and not excluded by the court,
the motion must be treated as one for Summary
Judgment under Rule 56. All parties must be given a
reasonable opportunity to present the material that is
pertinent on the motion. F.R.C.P. 12(d).

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III. Motions To Dismiss Under F.R.C.P. 12(b)(6)

2. This rule gives the court discretion to accept the extrinsic

materials that were offered in a 12(b)(6) motion. If the
court accepts, then the motion will be treated as one for
summary judgment.
3. All parties must be given reasonable opportunity to present
material that is pertinent to a Summary Judgment Motion.
4. The court must give fair opportunity to assemble affidavits
and supporting materials to present to the court.

IV. Motion for Judgment on the Pleadings – F.R.C.P. 12(c)

A. F.R.C.P. 12(c): "After the pleadings are closed–but early enough not to
delay trial–a party may move for judgment on the pleadings.“
B. A Motion for Judgment on the Pleadings is essentially the same as a
Motion under Rule 12(b)(6) because it tests the legal sufficiency of the
pleadings.
C. The proof used for a 12(c) motion is the same as that under 12(b)(6):
only the pleadings and incorporated exhibits are permissible. The Court
may not examine extraneous exhibits. If the court does consider them,
then the 12(c) motion may be converted to a Motion for Summary
Judgment under F.R.C.P. 56 (see above for discussion on conversions).

V. Motion to Dismiss for Lack of Subject

Matter Jurisdiction – F.R.C.P. 12(b)(1)

A. The lack of subject matter jurisdiction is such a fundamental defect

that it may be raised at any time, even on appeal. See e.g.,
Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp.,
109 F.3d 105, 107-110 (2d Cir. 1997).
B. The Court may decide a motion to dismiss based on:
1. the complaint alone;
2. the complaint supplemented by undisputed facts in the record; or
3. the complaint, undisputed facts, and the court's resolution of
disputed facts.

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V. Motion to Dismiss for Lack of Subject

Matter Jurisdiction – F.R.C.P. 12(b)(1)

C. The Court has the power to decide disputed factual issues essential to
determining whether subject matter jurisdiction exists. See Gonzalez v.
United States, 284 F.3d 281, 287-288 (1st Cir. 2002). However, if the
jurisdiction facts are related to the merits, then the court may treat it as
if it were a motion for summary judgment. Thus, the court would only
dismiss for lack of jurisdiction if there are no material facts in dispute as
to jurisdiction. See Kerns v. United States, 585 F.3d 187, 193-196 (4th
Cir. 2009).
D. On appeal, the Court of Appeals will review the legal determinations de
novo. Any factual determinations will be reviewed only for clear error.
See Faibisch v. University of Minn., 304 F.3d 797, 801 (8th Cir. 2002).

VI. Motion for Summary Judgment - F.R.C.P. 56

A. Timing:

1. A party may file a motion for summary judgment at any time until
30 days after the close of all discovery unless a different time is set
by local rule or court order. F.R.C.P. 56. A party may move for
summary judgment even before issue is joined. JAMES WM.
MOORE ET AL., MOORE'S FEDERAL PRACTICE - CIVIL § 56.60.
2. If there is no local rule or court order to the contrary, F.R.C.P. 6(c)
requires at least 14 days' notice for any written motion.
3. Under New York Law, by contrast, any party may move for
summary judgment in any action, after issue has been joined. CPLR
3212(a).

VI. Motion for Summary Judgment - F.R.C.P. 56

B. Standard of Law
1. The court will grant summary judgment if the moving party can
demonstrate that there is no genuine dispute as to any material fact.
F.R.C.P. 56(a).
2. A factual dispute is genuine if the dispute requires a trial for
resolution. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
3. The party must cite to specific materials in the record, show that the
materials that the opponent cites fail to establish a genuine dispute
as to fact, and/or submit an affidavit by a competent witness based
on personal knowledge. Moore's Federal Rules Pamphlet §
56.4[3][c].

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VI. Motion for Summary Judgment - F.R.C.P. 56

4. The genuine dispute of fact must be believable. When a party

gives an alternative set of facts that are blatantly contradicted
by an uncontested part of the record, then the court can
determine that no reasonable jury could believe it and,
therefore, there is no genuine dispute. Scott v. Harris, 550
U.S. 372, 127 S. Ct. 1769 (2007) (the Supreme Court held
that plaintiff's position that he had not been a danger to other
pedestrians and thus the police used unreasonable force was
not believable based upon uncontroverted evidence of a video
showing the high speed chase).

VI. Motion for Summary Judgment - F.R.C.P. 56

C. Rule 56 Statement:

1. According to the Local Rules for the Southern and Eastern

Districts in New York, there must be attached to a Motion for
Summary Judgment, a short and concise statement of the
material facts that the moving party contends that there is no
genuine issue to be tried. Local Rule 56.1.
2. If the statement is not included, the court may deny the
motion.

VI. Motion for Summary Judgment - F.R.C.P. 56

3. Every statement of material fact in the Rule 56 statement is

deemed admitted for the purposes of the motion unless the
opposing party specifically controverts the statement.
However, the statements are only deemed admitted for the
purpose of the motion; if the motion is denied, then a party is
free to dispute the statement. JAMES WM. MOORE ET AL.,
MOORE'S FEDERAL PRACTICE - CIVIL § 56.81.

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VI. Motion for Summary Judgment - F.R.C.P. 56

4. Each statement must be followed by a citation to evidence

which would be admissible under F.R.C.P. 56(c). A party who
does not provide a citation to admissible evidence could be
denied summary judgment. Giannullo v. City of New York,
322 F.3d 139, 140 (2d Cir. 2003).
5. Certain federal judges in E.D.N.Y. (such as Judge Seybert and
Judge Spatt) require that the 56.1 Statement be submitted
before a motion is even submitted.

VI. Motion for Summary Judgment - F.R.C.P. 56

4. Each statement must be followed by a citation to evidence

which would be admissible under F.R.C.P. 56(c). A party who
does not provide a citation to admissible evidence could be
denied summary judgment. Giannullo v. City of New York,
322 F.3d 139, 140 (2d Cir. 2003).
5. Certain federal judges in E.D.N.Y. (such as Judge Seybert and
Judge Spatt) require that the 56.1 Statement be submitted
before a motion is even submitted.

VI. Motion for Summary Judgment - F.R.C.P. 56

6. The Rule 56.1 Statement must include all undisputed material

facts that the movant relies upon in the Motion for Summary
Judgment. The purpose of the 56.1 Statement is to simplify
the court's task of determining whether there are any disputed
facts and whether there are sufficient undisputed facts to grant
the motion.
7. When a judge deems certain facts admitted for the purposes
of the motion, the Court of Appeals will only review the
determinations under an abuse of discretion standard. See
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).

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VI. Motion for Summary Judgment - F.R.C.P. 56

D. Pre-Motion Letters
1. Before making motions to the court, be sure to check the judge's
individual rules to see if a pre-motion letter is required. Some
judges require a party to submit a letter explaining why the motion
is necessary and request approval to make the motion.
2. Examples from the Eastern District of New York
a) Judge Bianco requires a letter sent to Chambers requesting
permission to make Rule 12 and 56 motions.
b) Judge Hurley requires a letter sent to Chambers requesting
permission to make a Rule 56 motion setting forth the bases of
the anticipated motion.

VI. Motion for Summary Judgment - F.R.C.P. 56

c) Judge Seybert and Spatt both require a letter be sent to Chambers

requesting permission to make a Rule 56 summary judgment
motion. The letter must include the Rule 56.1 statement and
counter-statement (although exhibits are not required).
d) Judge Wexler requires a letter and pre-motion conference before
making any motion.
e) In all cases, the letter should not exceed three (3) pages.
f) The letter should describe why the court should grant permission to
make a motion for summary judgment. The attorney should state
reasons based on the discovery already performed, such as
depositions conducted and documents received, that there are no
material undisputed facts at issue.

VI. Motion for Summary Judgment - F.R.C.P. 56

E. How many Summary Judgment Motions Can A Party Make

1. Rule 56 does not prohibit multiple motions for summary
judgment.
2. Depending on the circumstances courts will allow a party to
make multiple motions.
3. It is typically disfavored by the courts to make multiple motions
because it increases the burden of the case on the court.
4. Courts are more likely to allow multiple motions when there are
additional facts that were not available at the time of the first
motion, or when there has been a change in the law. Brown v.
City of Syracuse, 673 F.3d 141 (2d Cir. 2012).

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VI. Motion for Summary Judgment - F.R.C.P. 56

5. Courts will not be as accommodating in allowing a second

motion if the party was not diligent in either discovering the
facts before the first motion or failing to bring them to the
courts attention.
6. Courts will not look favorably on those who prematurely
make a motion before the close of discovery and will tend to
deny a second motion. See e.g., Campers' World Int'l, Inc. v.
Perry Ellis Int'l, Inc., 221 F.R.D. 409 (S.D.N.Y. 2004).

VI. Motion for Summary Judgment - F.R.C.P. 56

F. Evidence
1. Rule 56(c) provides that the court may consider:
a) Pleadings
b) Discovery
i. The court may only consider documentary evidence
that has been authenticated, which requires that "the
party presenting the document present evidence from a
person with firsthand knowledge sufficient to allow
that person to have the document admitted into
evidence." Richard D. Freer, Civil Procedure, 445 (2009).

VI. Motion for Summary Judgment - F.R.C.P. 56

c) Disclosure materials on file

d) Affidavits/Declarations. Affidavits must be:
i. Based on personal knowledge;
ii. Set out facts that would be admissible in evidence;
and
iii. Demonstrate that the affiant is competent to testify
on the matters stated.

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VI. Motion for Summary Judgment - F.R.C.P. 56

2. Expert Affidavits/Declarations
a) A party seeking to introduce Expert Affidavits must
first make sure to disclose the identity of the witness
pursuant to F.R.C.P. 26(a)(2).

VI. Motion for Summary Judgment - F.R.C.P. 56

b) "Fed. R. Civ. P. 26 (a)(2)(B) ("Rule 26 (a)(2)(B)") requires

that an expert's report contain 'a complete statement of all
opinions to be expressed and the basis and reasons therefor
…' It is essential that the expert's opinions be known to the
other party, so that they may properly prepare their
opposition. As a result, under Fed. R. Civ. P. 37(c)(1) ("Rule
37(c)(1)"), 'a party that without substantial justification fails
to disclose information required by Rule 26(a) … is not,
unless such failure is harmless, permitted to use as evidence
at trial, at a hearing, or on a motion any witness or
information not so disclosed.'" Commercial Data Servers,
Inc. v. IBM, 262 F. Supp. 2d 50, 61 (S.D.N.Y. 2003).

VI. Motion for Summary Judgment - F.R.C.P. 56

c) An Expert Affidavit must follow the same procedures as a

lay Affidavit. However, an Expert Witness, unlike a lay
witness, is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or
observation. Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. N.Y. 2008) (citing Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)).
d) The trial judge has broad discretion in the matter of the
admission or exclusion of expert evidence, and his action is
to be sustained unless manifestly erroneous. Salem v. United
States Lines Co., 370 U.S. 31, 35 (1962); see also Fed. R.
Evid. 702.

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VI. Motion for Summary Judgment - F.R.C.P. 56

e) When deciding whether to admit the evidence, Judges may

consider:
i. if it is speculative or conjectural. See In re Air
Disaster at Lockerbie Scotland, 37 F.3d 804, 824 (2d Cir.
1994), cert. denied, 115 S. Ct. 934 (1995).
ii. if it is based on assumptions that are so unrealistic and
contradictory as to suggest bad faith or to be in essence an
apples and oranges comparison. Shatkin v. McDonnell
Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984).
iii. A District Court has discretion under Fed. R. Evid. 703 to
determine whether the expert acted reasonably in making
assumptions of fact upon which he would base his
testimony. Shatkin, 727 F.2d at 208.

VII. Oral Arguments

A. Under the Local Southern and Eastern District Rules, "The

parties and their attorneys shall only appear to argue the
motion if so directed by the Court by order or by a Judge’s
Individual Practice." Local Rule 6.1(c). Therefore, you
must request oral argument from the Judge (usually by
letter).

VII. Oral Arguments

B. When making an oral argument, your statements should be

distilled from your papers. You should state:
1. what relief you seek;
2. why the Court is permitted or authorized to grant such
relief; and
3. why the Court should grant the relief sought in your
motion.

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MORITT HOCK & HAMROFF LLP

Strength In Partnership

QUESTIONS??
THANK YOU.
Michael Cardello III, Esq.
[email protected]
www.moritthock.com

400 Garden City Plaza ● Garden City, NY 11530 ● Tel: (516) 873-2000 ● Fax: (516) 873-2010 ● www.moritthock.com

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90
BASIC FEDERAL MOTION PRACTICE

by

SETH F. EISENBERG, ESQ.

Law Clerk to the Hon. Thomas J. McAvoy

Senior United States District Judge
Northern District of New York
Binghamton

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92
I. Where to find applicable rules.
A. Fed. R. Civ. P./Fed. R. Crim. P.
B. Local Rules
1. civil/criminal

II. Why care about local rules?

III. Serving Motions

A. Fed. R. Civ. P. 5

IV. Computing Time in General

A. Period stated in days or longer
B. E-filing
C. Specified due dates
D. Extensions of Time

V. Computing Time re: Motions

A. Fed. R. Civ. P. 6(c)
B. Application of local rules.
1. Filing the motion (31 days before return date)
2. Opposition papers (14 days before return date)
3. Reply papers (11 days before return date, if permitted)
4. Surreply
C. Not opposing/pursuing a motion
1. Local Rule 7.1(b)(3)
D. Filing deadlines in criminal cases.
E. Dispositive v. Non-Dispositive Motions
1. non-dispositive motion filing procedure

VI. Contents of a Motion

A. Memorandum of Law
1. Page limits
2. Exceptions
B. Supporting Affidavit
1. Contents/Exclusions
2. Exceptions
C. Proof of Service

VII. Summary Judgment Motions

A. Contents in motion for summary judgment
1. Memorandum of Law
2. Supporting Affidavit(s)
3. Statement of Material Facts
4. Proof of Service
5. Supporting Evidentiary Materials

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 6. Pro Se Notice (where applicable)
B. Statement of Material Facts
1. In support of a motion.
2. In opposition to a motion.
C. Contents of papers opposing a motion for summary judgment
D. Submitting Exhibits Electronically
E. Cross-Motions

VIII. Motions to Amend Pleadings

A. Contents
B. Filing requirements

IX. Orders to Show Cause

A. Compliance with Rule 7.1 generally
B. Telephone chambers
C. Affidavit
D. Why standard motion practice cannot be used
E. Proposed Order

X. Discovery Motions
A. Conferring in good faith
B. Timing/etc

XI. Form of Papers in General

A. Local Rule 10

XII. Adjournments
A. Local Rule 7.1(j)
B. Standing order

XIII. Failure to Comply with Local Rules

A. Consequences
B. Penalties

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 Referenced Links:

Local Rules for the United States District Court for the Northern District of New York:

http://www.nynd.uscourts.gov/sites/nynd/files/local_rules/2013_LOCAL_RULES.pdf

Finding court return dates in the Northern District of New York:

http://www.nynd.uscourts.gov/sites/nynd/files/local_rules/2013_LOCAL_RULES.pdf

Notice to Pro Se Litigants Concerning the Consequences of Failing to Properly Respond to

a Summary Judgment Motion:

http://www.nynd.uscourts.gov/sites/nynd/files/forms/Notification_Consequences_Failure_to_Res
pond_to_Summary_Judgment_Motion.pdf

95
Rule 6. Computing and Extending Time;
Time for Motion Papers
2. (a) Computing Time. The following rules apply in computing any time period specified in
these rules, in any local rule or court order, or in any statute that does not specify a method of
computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of
time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday,
the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal
holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal
holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run
until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is
inaccessible:

(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first
accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the
same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the
last day ends:

(A) for electronic filing, at midnight in the court's time zone; and

(B) for filing by other means, when the clerk's office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the
period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

96
(A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday,
Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’
Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state
where the district court is located.

(b) Extending Time.

(1) In General. When an act may or must be done within a specified time, the court may, for
good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original
time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable
neglect.

(2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b),
(d), and (e), and 60(b).

(c) Motions, Notices of Hearing, and Affidavits.

(1) In General. A written motion and notice of the hearing must be served at least 14 days before
the time specified for the hearing, with the following exceptions:

(A) when the motion may be heard ex parte;

(B) when these rules set a different time; or

(C) when a court order—which a party may, for good cause, apply for ex parte—sets a different
time.

(2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion.
Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days
before the hearing, unless the court permits service at another time.

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a
specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days
are added after the period would otherwise expire under Rule 6(a).

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 SECTION III.
PLEADINGS AND MOTIONS
7.1 Motion Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Personal Privacy Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.1 Request for Three-Judge Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.2 Requirement to File a Civil RICO Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.1 Form of Papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.1 Signing of Pleadings, Motions, and Other Papers; Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12.1 Defenses and Objections – How Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13.1 Counterclaims and Cross-Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14.1 Impleader. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15.1 Form of a Motion to Amend and Its Supporting Documentation. . . . . . . . . . . . . . . . . . . . . . . . 17
16.1 Civil Case Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16.2 Discovery Cut-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

7.1 Motion Practice (Amended January 1, 2013)

Introduction - Motion Dates and Times

Unless the Court directs otherwise, the moving party shall make its motion returnable at the next
regularly scheduled motion date at least thirty-one days from the date the moving party files and serves
its motion. The moving party shall select a return date in accordance with the procedures set forth in
subdivision (b). If the return date the moving party selects is not the next regularly scheduled motion date,
or if the moving party selects no return date, the Clerk will set the proper return date and notify the parties.

Information regarding motion dates and times is specified on the case assignment form that the Court
provides to the parties at the commencement of the litigation or the parties may obtain this form from the
Clerk's office or at the Court’s webpage at “www.nynd.uscourts.gov.”

The Court hereby directs the Clerk to set a proper return date in motions that pro se litigants submit for
filing that do not specify a return date or fail to allow for sufficient time pursuant to this Rule. Generally, the
return date that the Clerk selects should not exceed 30 days from the date of filing. Furthermore, the Clerk
shall forward a copy of the revised or corrected notice of motion to the parties.

(a) Papers Required. Except as otherwise provided in this paragraph, all motions and opposition to
motions require a memorandum of law, supporting affidavit, and proof of service on all the parties. See L.R.
5.1(a). Additional requirements for specific types of motions, including cross-motions, see L.R. 7.1(c), are
set forth in this Rule.

1. Memorandum of Law. No party shall file or serve a memorandum of law that exceeds twenty-five
(25) pages in length, unless that party obtains leave of the judge hearing the motion prior to filing. All
memoranda of law shall contain a table of contents and, wherever possible, parallel citations.
Memoranda of law that contain citations to decisions exclusively reported on computerized databases,
e.g., Westlaw, Lexis, Juris, shall include copies of those decisions.

When a moving party makes a motion based upon a rule or statute, the moving party must specify

[Table of Contents] 8 [III: Pleadings & Motions]

98
 in its moving papers the rule or statute upon which it bases its motion.

A memorandum of law is required for all motions except the following:

(A) a motion pursuant to Fed. R. Civ. P. 12(e) for a more definite statement;
(B) a motion pursuant to Fed. R. Civ. P. 15 to amend or supplement a pleading;
(C) a motion pursuant to Fed. R. Civ. P. 17 to appoint next friend or guardian ad litem;
(D) a motion pursuant to Fed. R. Civ. P. 25 for substitution of parties;
(E) a motion pursuant to Fed. R. Civ. P. 37 to compel discovery; and
(F) a motion pursuant to Fed. R. Civ. P. 55 for default.

2. Affidavit. An affidavit must not contain legal arguments but must contain factual and procedural
background that is relevant to the motion the affidavit supports.

An affidavit is required for all motions except the following:

(A) a motion pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can
be granted;
(B) a motion pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings; and
(C) a motion pursuant to Fed. R. Civ. P. 12(f) to strike a portion of a pleading

3. Summary Judgment Motions. Any motion for summary judgment shall contain a Statement of
Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material
fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth
a specific citation to the record where the fact is established. The record for purposes of the Statement
of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and
affidavits. It does not, however, include attorney’s affidavits. Failure of the moving party to submit an
accurate and complete Statement of Material Facts shall result in a denial of the motion.

The moving party shall also advise pro se litigants about the consequences of their failure to
respond to a motion for summary judgment. See also L.R. 56.2.

The opposing party shall file a response to the Statement of Material Facts. The non-movant’s
response shall mirror the movant’s Statement of Material Facts by admitting and/or denying each of the
movant’s assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to
the record where the factual issue arises. The non-movant’s response may also set forth any additional
material facts that the non-movant contends are in dispute in separately numbered paragraphs. The Court
shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.

4. Motions to Amend or Supplement Pleadings or for Joinder or Interpleader. A party moving

to amend a pleading pursuant to Fed. R. Civ. P. 14, 15, 19-22 must attach an unsigned copy of the
proposed amended pleading to its motion papers. Except if the Court otherwise orders, the proposed
amended pleading must be a complete pleading, which will supersede the original pleading in all
respects. A party shall not incorporate any portion of its prior pleading into the proposed amended
pleading by reference.

[Table of Contents] 9 [III: Pleadings & Motions]

99
 The motion must set forth specifically the proposed amendments and identify the amendments in
the proposed pleading, either through the submission of a red-lined version of the original pleading or
other equivalent means.

Where a party seeks leave to supplement a pleading pursuant to Fed. R. Civ. P. 15(d), the party
must limit the proposed supplemental pleading to transactions or occurrences or events which have
occurred since the date of the pleading that the party seeks to supplement. The party must number the
paragraphs in the proposed pleading consecutively to the paragraphs contained in the pleading that it
seeks to supplement. In addition to the pleading requirements set forth above, the party requesting leave
to supplement must set forth specifically the proposed supplements and identify the supplements in the
proposed pleading, either through the submission of a red-lined version of the original pleading or other
equivalent means.

Caveat: The granting of the motion does not constitute the filing of the amended pleading. After
the Court grants leave, unless the Court otherwise orders, the moving party must file and serve the
original signed amended pleading within fourteen (14) days of the Order granting the motion.

(b) Motions.

1. Dispositive Motions. The moving party must file all motion papers with the Court and serve them
upon the other parties not less than THIRTY-ONE DAYS prior to the return date of the motion. The
Notice of Motion must state the return date that the moving party has selected.

The party opposing the motion must file its opposition papers with the Court and serve them upon
the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.

The moving party must file its reply papers, which may not exceed (10) pages with the Court and
serve them upon the other parties not less than ELEVEN DAYS prior to the return date of the motion.

A surreply is not permitted.

Parties shall file all original motion papers, including memoranda of law and supporting affidavits,
if any, in accordance with the Administrative Procedures for Electronic Case Filing (General Order #22)
and/or the case assignment form provided to the parties at the commencement of the litigation. The
parties need not provide a courtesy copy of their motion papers to the assigned judge unless the assigned
judge requests a copy.

2. Non-Dispositive Motions. Prior to making any non-dispositive motion before the assigned
Magistrate Judge, the parties must make good faith efforts among themselves to resolve or reduce all
differences relating to the non-dispositive issue. If, after conferring, the parties are unable to arrive
at a mutually satisfactory resolution, the party seeking relief must then request a court conference with
the assigned Magistrate Judge.

A court conference is a prerequisite to filing a non-dispositive motion before the assigned

Magistrate Judge. In the Notice of Motion, the moving party is required to set forth the date that the
court conference with the Magistrate Judge was held regarding the issues being presented in the motion.
Failure to include this information in the Notice of Motion may result in the Court rejecting the motion

[Table of Contents] 10 [III: Pleadings & Motions]

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 papers.

Actions which involve an incarcerated, pro se party are not subject to the requirement that a court
conference be held prior to filing a non-dispositive motion.

Unless the Court orders otherwise, the moving party must file all motion papers with the Court and
serve them upon the other parties not less than THIRTY-ONE DAYS prior to the return date of the
motion.

The party opposing the motion must file its Opposition papers with the Court and serve them upon
the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.

Reply papers and adjournments are not permitted without the Court's prior permission.

3. Failure To Timely File or Comply. The Court shall not consider any papers required under this
Rule that are not timely filed or are otherwise not in compliance with this Rule unless good cause is
shown. Where a properly filed motion is unopposed and the Court determines that the moving party has
met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure
to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of
the motion, as the case may be, unless good cause is shown.

Any party who does not intend to oppose a motion, or a movant who does not intend to pursue a
motion, shall promptly notify the Court and the other parties of such intention. They should provide such
notice at the earliest practicable date, but in any event no less than FOURTEEN DAYS prior to the
scheduled return date of the motion, except for good cause shown. Failure to comply with this Rule
may result in the Court imposing sanctions, and may be deemed sufficient cause for the denial of
a motion or the granting of a motion by default.

(c) Cross-Motions. A party may file and serve a cross-motion (meaning a competing request for relief
or order similar to that requested by another party against the cross-moving party) at the time it files and
serves its opposition papers to the original motion, i.e., not less than SEVENTEEN DAYS prior to the return
date of the motion. If a party makes a cross-motion, it must join its cross motion brief with its opposition
brief, and this combined brief may not exceed twenty-five (25) pages in length, exclusive of exhibits. A
separate brief in opposition to the original motion is not permissible.

The original moving party may reply in further support of the original motion and in opposition to the
cross-motion with a reply/opposition brief that does not exceed twenty-five (25) pages in length, exclusive
of exhibits. The original moving party must file its reply/opposition papers with the Court and serve them
on the other parties not less than ELEVEN DAYS prior to the return date of the original motion.

The cross-moving party may not reply in further support of its cross-motion without the Court's prior
permission.

(d) Discovery Motions. The following steps are required prior to making any discovery motion
pursuant to Rules 26 through 37 of the Federal Rules of Civil Procedure.

1. Parties must make good faith efforts among themselves to resolve or reduce all differences relating

[Table of Contents] 11 [III: Pleadings & Motions]

101
 to discovery prior to seeking court intervention.

2. The moving party must confer in detail with the opposing party concerning the discovery issues
between them in a good faith effort to eliminate or reduce the area of controversy and to arrive at
a mutually satisfactory resolution. Failure to do so may result in denial of a motion to compel
discovery and/or imposition of sanctions.

3. If the parties' conference does not fully resolve the discovery issues, the party seeking relief must
then request a court conference with the assigned Magistrate Judge. Incarcerated, pro se parties
are not subject to the court conference requirement prior to filing a motion to compel discovery.
The assigned Magistrate Judge may direct the party making the request for a court conference to
file an affidavit setting forth the date(s) and mode(s) of the consultation(s) with the opposing party
and a letter that concisely sets forth the nature of the dispute and a specific listing of each of the
items of discovery sought or opposed. Immediately following each disputed item, the party must
set forth the reason why the Court should allow or disallow that item.

4. Following a request for a discovery conference, the Court may schedule a conference and advise
all parties of a date and time. The assigned Magistrate Judge may, in his or her discretion, conduct
the discovery conference by telephone conference call, initiated by the party making the request for
the conference, by video conference, or by personal appearance.

5. Following a discovery conference, the Court may direct the prevailing party to submit a proposed
order on notice to the other parties.

6. If a party fails or refuses to confer in good faith with the requesting party, thus requiring the request
for a discovery conference, the Court, at its discretion, may subject the resisting party to the
sanction of the imposition of costs, including the attorney’s fees of opposing party in accordance
with Fed. R. Civ. P. 37.

7. A party claiming privilege with respect to a communication or other item must specifically identify
the privilege and the grounds for the claimed privilege. The parties may not make any generalized
claims of privilege.

8. The parties shall file any motion to compel discovery that these Rules authorize no later than
FOURTEEN DAYS after the discovery cut-off date. See L.R. 16.2. A party shall accompany any
motion that it files pursuant to Fed. R. Civ. P. 37 with the discovery materials to which the motion
relates if the parties have not previously filed those materials with the Court.

(e) Order to Show Cause. All motions that a party brings by Order to Show Cause shall conform to
the requirements set forth in L.R. 7.1(a)(1) and (2). Immediately after filing an Order to Show Cause, the
moving party must telephone the Chambers of the presiding judicial officer and inform Chambers staff
that it has filed an Order to Show Cause. Parties may obtain the telephone numbers for all Chambers from
the Clerk's office or at the Court’s webpage at “www.nynd.uscourts.gov.” The Court shall determine the
briefing schedule and return date applicable to motions brought by Order to Show Cause.

In addition to the requirements set forth in Local Rule 7.1(a)(1) and (2), a motion brought by Order to
Show Cause must include an affidavit clearly and specifically showing good and sufficient cause why the

[Table of Contents] 12 [III: Pleadings & Motions]

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 standard Notice of Motion procedure cannot be used. The moving party must give reasonable advance notice
of the application for an Order to Show Cause to the other parties, except in those circumstances where the
movant can demonstrate, in a detailed and specific affidavit, good cause and substantial prejudice that would
result from the requirement of reasonable notice.

An Order to Show Cause must contain a space for the assigned judge to set forth (a) the deadline for
filing and serving supporting papers, (b) the deadline for filing and serving opposing papers, and (c) the date
and time for the hearing.

(f) Temporary Restraining Order. A party may seek a temporary restraining order by Notice of
Motion or Order to Show Cause, as appropriate. Filing procedures and requirements for supporting
documents are the same as set forth in this Rule for other motions. The moving party must serve any
application for a temporary restraining order on all other parties unless Fed. R. Civ. P. 65 otherwise permits.
L.R. 7.1(b)(2) governs motions for injunctive relief, other than those brought by Order to Show Cause. L.R.
7.1(e) governs motions brought by Order to Show Cause.

(g) Motion for Reconsideration. Unless Fed. R. Civ. P. 60 otherwise governs, a party may file and
serve a motion for reconsideration or reargument no later than FOURTEEN DAYS after the entry of the
challenged judgment, order, or decree. All motions for reconsideration shall conform with the requirements
set forth in L.R. 7.1(a)(1) and (2). The briefing schedule and return date applicable to motions for
reconsideration shall conform to L.R. 7.1(b)(2). A motion for reconsideration of a Magistrate Judges’s
determination of a non-dispositive matter shall toll the fourteen (14) day time period to file objections
pursuant to L.R. 72.1(b). The Court will decide motions for reconsideration or reargument on submission of
the papers, without oral argument, unless the Court directs otherwise.

(h) Oral Argument. The parties shall appear for oral argument on all motions that they make
returnable before a district court judge, except motions for reconsideration, on the scheduled return date of
the motion. A motion may be disposed of without oral argument as described in General Order 25, on
consideration of a request of any party, or otherwise at the discretion of the presiding judge. Thus, the parties
should be prepared to have their motion papers serve as the sole method of argument on the motion.

The parties shall not appear for oral argument on motions that they make returnable before a Magistrate
Judge on the scheduled return date of the motion unless the Magistrate Judge sua sponte directs or grants the
request of any party for oral argument.

(i) Sanctions for Vexatious or Frivolous Motions or Failure to Comply with this Rule. A party
who presents vexatious or frivolous motion papers or fails to comply with this Rule is subject to discipline
as the Court deems appropriate, including sanctions and the imposition of costs and attorney’s fees to the
opposing party.

(j) Adjournments of Dispositive Motions. After the moving party files and serves its motion papers
requesting dispositive relief, but before the time that the opposing party must file and serve its opposing
papers, the parties may agree to an adjournment of the return date for the motion. However, any such
adjournment may not be for more than THIRTY-ONE DAYS from the return date that the moving party
selected. In addition, the parties may agree to new dates for the filing and service of opposition and reply
papers. However, the parties must file all papers with the Court and serve them upon the other parties not less
than ELEVEN DAYS prior to the newly selected return date of the motion. If the parties agree to such an

[Table of Contents] 13 [III: Pleadings & Motions]

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 adjournment, they must file a letter with the Court stating the following: (1) that they have agreed to an
adjournment of the return date for the motion, (2) the new return date, (3) the date on which the opposing
party must file and serve its opposition papers, and (4) the date on which the moving party must file and serve
its reply papers. The parties may not agree to any further adjournment.

If one of the parties seeks an adjournment of not more than THIRTY-ONE DAYS from the return date
that the moving party selected, but the other parties will not agree to such an adjournment, the party seeking
the adjournment must file a letter request with the Court and serve the same upon the other parties, stating the
following: (1) that the parties cannot agree to an adjournment, (2) the reason that the party is seeking the
adjournment, and (3) the suggested return date for the motion. Within three days of receiving this letter
request, the parties who have not agreed to an adjournment may file a letter with the Court and serve the same
upon the other parties, setting forth the reasons that they do not agree to the requested adjournment. The
Court will then take the request under advisement and, as soon as practicable, will enter an order granting or
denying the request and, if granting the request, will set forth new dates for the filing and serving of
opposition and reply papers.

If any party seeks an adjournment of the return date that is more than THIRTY-ONE DAYS from the
return date that the moving party selected, that party must file a letter request with the Court stating the
following: (1) why the party needs a longer adjournment and (2) a suggested return date for the motion. The
Court will grant such an adjournment only upon a showing of exceptional circumstances. In the alternative
or if the Court denies the request for an adjournment, the moving party may withdraw its motion without
prejudice to refile at a later date. The moving party must refile its motion within the time frame set in the
Uniform Pretrial Scheduling Order unless either the assigned District Judge or the assigned Magistrate Judge
has granted an extension of the motion-filing deadline.

8.1 Personal Privacy Protection (Amended January 1, 2013)

Parties shall refrain from including, or shall redact where inclusion is necessary, the following personal
identifiers from all filings with the Court, including exhibits thereto, whether filed electronically or in paper
form, unless the Court orders otherwise.

1. Social security numbers. If an individual’s social security number must be included in a

document, use only the last four digits of that number.
2. Names of minor children. If the involvement of a minor child must be mentioned, use only the
initials of that child.
3. Dates of birth. If an individual’s date of birth must be included in a document, use only the year.
4. Financial account numbers. If financial account numbers are relevant, use only the last four
digits of those numbers.
5. Home Addresses. If a home address must be used, use only the City and State.

In addition, caution shall be exercised when filing documents that contain the following:

1. personal identifying number, such as a driver’s license number;

2. medical records, treatment and diagnosis;
3. employment history;
4. individual financial information; and
5. proprietary or trade secret information.

[Table of Contents] 14 [III: Pleadings & Motions]

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 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

NOTIFICATION OF THE CONSEQUENCES OF FAILING

TO RESPOND TO A SUMMARY JUDGMENT MOTION

The defendants have moved for summary judgment under Federal Rule of Civil
Procedure 56. A motion for summary judgment asks the Court to make a final judgment
dismissing some or all of your claims. If you do not file a proper response to this motion, the Court
may grant the motion and dismiss some or all of your claims. Under Local Rule 7.1(a), to file
a proper response to this motion, you must submit the following papers:

(1) A response to the defendants’ statement of material facts that admits

and/or denies each of the defendants’ assertions in matching numbered
paragraphs,1 and that supports each denial with citations to record evidence;2
(2) Copies of all record evidence that you cite in your response to the
defendants’ statement of material facts;3 AND
(3) A response memorandum of law (no more than 25 pages long and
formatted in compliance with Local Rule 10.1) that responds to each of the
legal arguments contained in the defendants’ memorandum of law, and that
contains any additional legal arguments you may have in response to the
defendants’ motion for summary judgment.

WARNING: If you do not submit a proper response to the defendants’ statement of

material facts, the Court may deem you to have admitted the defendants’ factual
statements. If you do not submit copies of record evidence in support of your denials, the Court
may deem defendants’ factual statements to be true. If you do not submit a proper response
memorandum of law, the Court may deem you to have conceded the defendants’ arguments.
If you do not respond to this motion properly (or at all), summary judgment may be entered
against you, meaning that SOME OR ALL OF YOUR CLAIMS MAY BE DISMISSED.

1
In other words, your paragraph “1” should admit or deny defendants’ paragraph “1,” your
paragraph “2” should admit or deny defendants’ paragraph “2,” and so on. Any additional material
facts you wish to raise must be set forth separately from your admissions or denials of the
defendants’ statements of material facts.
2
In certain circumstances, instead of admitting or denying a statement of material fact, you
may dispute it by “showing that the materials cited [by the defendants] do not establish the absence
. . . of a genuine dispute [of fact].” Federal Rule of Civil Procedure 56(c)(1)(B) (emphasis added).
3
Record evidence includes material in the record such as “depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials.” Federal Rule
of Civil Procedure 56(c)(1)(A). If you submit an affidavit in support of your response, it “must be
made on personal knowledge, set forth facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Federal Rule of Civil
Procedure 56(c)(4).
105
U pdated 7/11/2011
 SECTION I.
SCOPE OF THE RULES
ONE FORM OF ACTION
1.1 Scope of the Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Availability of the Local Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Local Patent Rules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 One Form of Action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 Scope of the Rules

(a) Title and Citation. These are the Local Rules of Practice for the United States District Court for
the Northern District of New York. They shall be cited as “L.R. .”

(b) Effective Date; Transitional Provision. These Rules became effective on January 1, 2013.
Recent amendments are noted with the phrase (Amended January 1, 2013).

(c) Scope of the Rules; Construction. These Rules supplement the Federal Rules of Civil and
Criminal Procedure. They shall be construed to be consistent with those Rules and to promote the just,
efficient and economical determination of every action and proceeding.

(d) Sanctions and Penalties for Noncompliance. Failure of an attorney or of a party to comply with
any provision of these Rules, General Orders of this District, Orders of the Court, or the Federal Rules of Civil
or Criminal Procedure shall be a ground for imposition of sanctions.

(e) Definitions.

1. The word “court,” except where the context otherwise requires, refers to the United States
District Court for the Northern District of New York.

2. The word “judge” refers either to a United States District Judge or to a United States
Magistrate Judge.

3. The words “assigned judge,” except where the context otherwise requires, refer to the United
States District Judge or United States Magistrate Judge exercising jurisdiction with respect
to a particular action or proceeding.

4. The words “Chief Judge” refer to the Chief Judge or a judge temporarily performing the
duties of Chief Judge under 28 U.S.C. § 136(e).

5. The word “clerk” refers to the Clerk of the Court or to a deputy clerk whom the Clerk
designates to perform services of the general class provided for in Fed. R. Civ. P. 77.

6. The word “marshal” refers to the United States Marshal of this District and includes deputy
marshals.

7. The word “party” includes a party's representative.

[Table of Contents]
106
1 [I: Scope]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------

STANDING ORDER ON EXTENSIONS OF TIME

TO FILE OPPOSITION PAPERS AND REPLY
PAPERS IN ALL MOTIONS FILED PURSUANT
TO N.D.N.Y.L.R. 7.1 and 12.1.
--------------------------------

THOMAS J. McAVOY
Senior United States District Judge

STANDING ORDER ON EXTENSIONS OF TIME

TO FILE PAPERS IN CONNECTION WITH MOTIONS

The following rules apply to all requests for an extension of time to file papers in

opposition, or, where permitted, in reply, to motions filed under N.D.N.Y.L.R. 7.1 or 12.1

that are returnable before the undersigned.

Parties should not telephone Chambers or the Court Clerk’s office regarding

extensions of time, but, instead, must comply with the following.

Where All Parties Consent to an Extension of Time

Upon the consent of all parties, a motion may be adjourned one time, subject to

the following:

1. An extension of time is only permitted to the extent that all papers in support of,

in opposition to, and, where permitted by local rule or otherwise, in reply to, the

motion will be filed and served no later than FORTY-FIVE days prior to the trial

ready date set forth in the Scheduling Order;

2. The parties may agree to adjourn the return date to the next regularly scheduled

return date that is not more than thirty-one days after the original return date, or

any other return date that is within this thirty-one day period;

107
3. On or before the time the papers in opposition to the motion are originally due

to be filed, the parties shall file with the Clerk’s office a signed stipulation,

substantially conforming to the form attached hereto, setting forth the following:

a. the parties’ agreement to the extension of time;

b. the original return date;

c. the new return date selected by the parties that is not more than thirty-

one days after the original return date;

d. an agreed upon schedule for filing opposition and reply papers that

ensures that all papers are filed at least eleven days before the new

return date;

e. the parties’ understanding that the extension of time will not implicate

the Schedule Order, including the trial ready date.

4. Failure to comply with any of the foregoing will result in a denial of the extension

of time.

5. The parties shall not be entitled to a second extension of time.

Where All The Parties Have Not Consented to an Extension of Time

Where all the parties have not consented to an extension of time, no extension

shall be permitted except for exigent circumstances. Such requests for extensions of

time shall be presented in writing.

Dated: December 29, 2003

-2-

108
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------

Plaintiff(s),

-against- XX-CV-XXXX

Defendant(s).

--------------------------------

STIPULATION REQUESTING ORDER FOR EXTENSION OF TIME

The undersigned parties, representing all the parties in the above-captioned matter,

hereby stipulate as follows:

1. A motion has been filed in the above-referenced matter that

currently is returnable on [insert original return date].

2. Papers in opposition to the motion currently are due on or before

[insert date by which opposition papers currently are due].

3. This stipulation is being filed on or before the date specified in

paragraph 2 above.

4. All the parties to this action have agreed to adjourn the return date

for this motion to a new, regularly scheduled return date that is not

more than thirty-one days after the original return date. The new

return date is [insert new regularly scheduled return date that is

not more than thirty-one days after the original return date set

forth in paragraph 1 above].

-3-

109
 5. The parties have further agreed as follows:

a. papers in opposition to the motion will be filed on or before

[insert date].

b. where permitted by local rule or otherwise, reply papers will be

filed on or before [insert date that is at least eleven days before

the new return date]

c. All papers filed in connection with this motion will be filed at

least eleven days before the new return date and forty five days

before the trial ready date set forth in the Scheduling Order.

6. This extension of time in no way effects the deadlines set forth in

the Scheduling Order, including the trial ready date.

7. The parties request that the Court so order this stipulation for an

extension of time.

Dated:

-----------------------------------
Attorneys for Plaintiff

-------------------------------------
Attorneys for Defendant

-4-

110
 ALTERNATE DISPUTE RESOLUTION IN THE

NORTHERN DISTRICT OF NEW YORK THE PILOT

PROGRAM TAKES OFF

by

SCOTT A. BARBOUR, ESQ.

McNamee, Lochner, Titus & Williams, P.C.

Albany

111
112
 I. ALTERNATE DISPUTE RESOLUTION (ADR) CURRENT
PROGRAM

A. NDNY Local Rules 83.7 to 83.14.

B. The current program provides for three (3) forms of ADR:

1. Mediation;
2. Early Neutral Evaluation; and
3. Arbitration.

C. The cases subject to mandatory ADR are tort, contract, and other
cases referred by the Court.

D. Panel of Neutrals – made up of volunteer local attorneys.

E. This current program will be suspended as of January 1, 2014 and will

be superseded by the Pilot Mandatory Mediation Program (PMMP).

II. NORTHERN DISTRICT OF NEW YORK PILOT MANDATORY

MEDIATION PROGRAM (PMMP)

General Order # 47 (Copy annexed hereto)

A. EFFECTIVE DATE

1. January 1, 2014;
2. Two (2) year duration.

B. SCOPE

1. All civil cases filed on or after January 1, 2014 will be referred

automatically to the PMMP. The following cases are exempt from
automatic referral:
a. Habeas Corpus;
b. Applications to vacate a sentence;
c. Social Security appeals;
d. Bankruptcy appeals;
e. Cases implicating issues of public policy;

113
{M0720795.1 }
 f. IRS Summons enforcement actions;
g. Governmental foreclosure actions;
h. Civil Asset Forfeiture actions;
i. Prisoner Civil Rights actions;
j. Civilian pro se actions; and
k. Actions to enforce government summons, subpoena, or
investigative demand.
2. Pending Cases: The Court may, sua sponte, issue an order referring
any pending case into the PMMP.
3. Stipulation: Case may be referred to the PMMP by stipulation of
all parties.

C. OPTING OUT

1. Time – Motion must be made within fourteen (14) days of the Rule
16 conference.
2. Basis – Opting out motion shall be granted only for “good cause”
shown. Inconvenience, travel costs, attorney’s fees or other costs
shall not constitute “good cause.” The movant must state why the
mediation “. . . has no reasonable chance of being productive.”
3. Court – The assigned judge or magistrate may exempt any case
from the PMMP.

D. MEDIATORS

1. NDNY Panel – A panel of experienced attorneys has been

selected by the Court to serve as mediators for the PMMP. This
panel was selected within input from the Northern District ADR
Committee, Northern District Federal Court Bar Association, and
the Board of Judges. All Neutrals are required to attend training
established by the Court. The Neutrals are located in Albany,
Binghamton, Utica, Syracuse and Plattsburgh. The biographies
and court-approved hourly rate of panel members will be available
on the NDNY website.
2. Private Mediators – The parties may select a Mediator who is not a
member of the Court’s PMMP panel.
3. Compensation – Mediators shall be paid $150.00 per hour (i.e.
$300.00) for the first two hours of the initial mediation session.
This cost includes any necessary preparation time for the
mediation. After the initial two-hour session, the mediators shall

114
{M0720795.1 }
 receive their court-approved hourly-rate, not to exceed $300.00 per
hour, for additional time spent in mediation and preparation.
a. The fee for the mediator shall be divided equally among all
separately-represented parties, unless otherwise agreed to, or
ordered by the Court;
b. All mediation panel members must provide a minimum service
of one (1) pro bono case, or two reduced compensation cases,
for every four (4) fully compensated cases for which the
mediator is selected; and
c. A party who has been granted in forma pauperis status and
represented by counsel, is relieved of the pro rata share of the
mediator’s fee.

E. SELECTION OF MEDIATOR

The Selection of the Mediator must be made within twenty-eight

(28) days from the Rule 16 Conference. If the parties fail to agree
upon a mediator within this period, the Court shall select a
mediator for the case from the NDNY list.

F. TIMING

The timing for the ADR will be decided by the Assigned

Magistrate Judge. It is intended to have the case proceed through
the PMMP as early as possible. The ADR deadline does not delay
or defer any other deadlines established in the Case Management
Plan.

G. FORMAT

1. The initial mediation session shall be conducted within twelve

(12) weeks after the Rule 16 Conference. This time deadline may
be extended by the Court. This session shall be held in the
mediator’s office unless otherwise agreed. This session must be a
minimum of two (2) hours in length.
2. The mediator of the parties shall jointly determine whether it
would be helpful to schedule additional sessions. These sessions
could be in person, telephone discussions, or private consultations
with the mediator.

115
{M0720795.1 }
 H. SUBMISSIONS

1. Timing – Seven (7) days before the scheduled mediation session.

2. Content
a. Memorandum shall not exceed ten (10) pages and shall contain:
i. The identity, title and status of the participants;
ii. A description of the parties’ claims and defenses;
iii. The relief sought and the basis for any claim of damages;
iv. The current status of the case;
v. Settlement negotiations; and
vi. Any other relevant information.
3. The Mediation Memorandum should not be filed with the Court.
4. Shared with adverse parties?

I. ATTENDANCE

1. Parties – All parties and their counsel are required to attend the
mediation session unless excused in advance.
2. Insurer or corporate representatives are required to attend in person
if necessary to achieve a settlement unless excused in advance.
3. Request to be Excused – Must show that personal attendance
would impose “. . . an extraordinary or otherwise unjustifiable
hardship.” This must be done fourteen (14) days before the date of
the mediation. The mediator will then make a prompt
determination and may require personal attendance, permit
participation via telephone, or excuse participation altogether.

J. CONFIDENTIALITY

1. All communication in connection with, or during the mediation

sessions, is deemed confidential.
2. There shall be no communication between the assigned judge and
the mediator regarding the mediation session.
3. No communication made in connection with the mediation session
may be disclosed or used for any purpose in any future court
proceeding.

116
{M0720795.1 }
ALTERNATE DISPUTE RESOLUTION IN THE 
NORTHERN DISTRICT OF 
NEW YORK

THE PILOT PROGRAM TAKES OFF
Scott A. Barbour, Esq.
McNamee, Lochner, Titus & Williams, P.C.
677 Broadway, Suite 500
Albany, New York  12207
(518) 447‐3213

November 14, 2013

117
 Current ADR Program
• NDNY Local Rules 83.7 to 83.14
• Forms:
– Mediation
– Early Neutral Evaluation
– Arbitration
• Scope: Contract, Tort, Court Referred
• Neutrals: Volunteer Panel
• Suspended January 1, 2014

118
 Pilot Mandatory Mediation Program 
(PMMP)
• Effective Date: January 1, 2014
• Duration: Two Years

119
 Scope
• All civil cases filed on or after January 1, 2014 will be referred automatically to the 
PMMP.  The following cases are exempt from automatic referral:
– Habeas Corpus;
– Applications to vacate a sentence;
– Social Security appeals;
– Bankruptcy appeals;
– Cases implicating issues of public policy;
– IRS Summons enforcement actions;
– Governmental foreclosure actions;
– Civil Asset Forfeiture actions;
– Prisoner Civil Rights actions;
– Civilian pro se actions; and
– Actions to enforce government summons, subpoena, or investigative demand. 
• Pending Cases: The Court may, sua sponte, issue an order referring any pending 
case into the PMMP.
• Stipulation: Case may be referred to the PMMP by stipulation of all parties.

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 Opting Out
• Time: Within 14 days of Rule 16 Conference
• Basis: “Good Cause Shown” 
“No Reasonable Chance of Being 
Productive”
• Court:

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 Mediators
• NDNY Panel
• Private Mediators
• Compensation
– $300 for initial 2 hour session
– Court approved hourly rate not to exceed $300 
per hour
– Divided equally among all represented parties

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 Timeline
• Selection of Mediator – Within 28 days of Rule 
16 conference
• Initial Mediation Session – Within 12 weeks of 
Rule 16 conference 
– Can be varied by Judge
• Subsequent Mediation Session – On or before 
ADR deadline

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 Submissions
• 7 Days before Initial Session
• Not to exceed 10 pages
• Not filed with Court
• Copy to Adverse Parties (?)

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 Attendance
• All parties and their counsel
• Insurer or corporate representative
• Request to be excused
– Directed to Mediator
– 14 days before session
– Must show “. . .extraordinary or otherwise 
unjustifiable hardship.”

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 Confidentiality
• All communication in connection with or 
during mediation
• No communication between mediator and 
judge
• Cannot be used in any future court proceeding

126
 U.S. DISTRICT COURT
N.D. OF N.Y.
FILED
September 13, 2013

LAWRENCE K. BAERMAN, CLERK

UNITED STATES DISTRICT COURT

for the
NORTHERN DISTRICT OF NEW YORK

GENERAL ORDER #47

Pilot Mandatory Mediation Program

So Ordered: September 13, 2013

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 PILOT MANDATORY MEDIATION PLAN
NORTHERN DISTRICT OF NEW YORK

SECTION 1 - INTRODUCTION AND AUTHORITY

1.1 TITLE

This Plan will serve as the authorization for a Two-Year Pilot Mandatory Mediation Program.

1.2 PURPOSE AND SCOPE

A. Purpose. The United States District Court for the Northern District of New York has
adopted this Pilot Mandatory Mediation Plan. The “Effective Date” of the Plan will be
January 1, 2014. The Pilot Paid Mediation Program is designed to provide quicker,
less expensive and potentially more satisfying alternatives to continuing litigation,
without impairing the quality of justice or the right to trial.

B. Scope. This Pilot Mandatory Mediation Plan applies to civil actions pending or
commenced on and after the Effective Date, except as otherwise indicated herein.
During the pendency of this Pilot, the current voluntary Arbitration, Mediation, and Early
Neutral Evaluation Programs will be suspended. The Local Rules for voluntary
mediation will apply only to Pro Se Cases that proceed through the Assisted Mediation
Program.

C. Magistrate Judge Consent Cases. Consistent with Local Rule of Civil Procedure
72.1, in cases where the parties have consented to jurisdiction by a Magistrate Judge
under 28 U.S.C. § 636, the Magistrate Judge shall have the same powers as the
District Court Judge originally assigned to the case.

D. Plan Administration.

1. Staffing. The Clerk of Court will appoint an ADR administrator to assist with the
management and oversight of the Court’s ADR programs.

2. ADR Information and Guidelines. Information about the Court’s Alternative

Dispute Resolution Programs are available at http://www.nynd.uscourts.gov
and also at the Court Clerk’s office.

3. All inquiries about the Pilot Mandatory Mediation Program and the Court’s other
ADR Programs should be directed to:

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Suzanne Gunter, ADR Program Administrator
U.S. District Court
James T. Foley U.S. Courthouse
Albany, New York 12207

Telephone: (518) 257-1807

e-mail: Suzanne [email protected]

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 SECTION 2 - OVERVIEW

2.1 REFERRAL INTO THE PILOT MANDATORY MEDIATION PROGRAM.

A. New Cases. All civil cases filed on and after the Effective Date of the Pilot Mandatory
Mediation Program shall be referred automatically in the Pilot Mandatory Mediation
Program. Notice of the Pilot Mandatory Mediation requirements will be provided to all
parties immediately upon the filing of a complaint and answer or a notice of removal.
ADR intervention will be scheduled at the conference held pursuant to Local Rule of
Civil Procedure 16.1. The following categories of actions are exempted from automatic
referral:

1. Habeas Corpus and extraordinary writs;

2. Applications to vacate a sentence;
3. Social Security appeals;
4. Bankruptcy appeals;
5. Cases implicating issues of public policy, exclusively or predominantly;
6. IRS summons enforcement actions;
7. Government foreclosure actions;
8. Civil asset forfeiture actions;
9. Prisoner civil rights actions;
10. Civilian Pro Se actions (these actions may be referred to the Court’s Assisted
Mediation Program); and
11. Any action to enforce a government summons, subpoena or civil investigative
demand.

B. Pending Cases. The assigned Judge or Magistrate Judge on any pending civil case
may, sua sponte or with status conference, issue an order referring the case into the
Pilot Mandatory Mediation Program. The order shall specify a date on which the ADR
intervention is to be completed.

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C. Stipulation. A case may be referred into the Pilot Mandatory Mediation Program by
stipulation of all parties. Stipulations shall be filed and shall designate the time frame
within which the ADR process will be completed. Stipulations are presumed acceptable
unless the assigned Judge or Magistrate Judge determines that the interests of justice
are not served.

2.2 RELIEF FROM ADR REFERRAL

A. Opting Out Motions. Any party may file, with the assigned Magistrate Judge for that
case, a motion to opt out of, or for relief, from the Pilot Mandatory Mediation Program.

B. Motion. Opting Out Motions must be made within fourteen (14) days from (I) the date
of the first conference under Local Rule 16.1 in new cases, or (ii) the date of a sua
sponte Pilot Mandatory Mediation Referral Order in pending cases.

C. Criteria. Opting Out Motions shall be granted only for “good cause” shown.
Inconvenience, travel costs, attorney fees or other costs shall not constitute “good
cause.” A party seeking relief from the Pilot Mandatory Mediation Program must set
forth the reasons why Mandatory Mediation has no reasonable chance of being
productive.

D. Judicial Initiative. The assigned Magistrate Judge may, sua sponte, exempt any
case from the Court's Pilot Mandatory Mediation Program.

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2.3 VIOLATIONS OF THE PILOT MANDATORY MEDIATION PROGRAM.

A. Report of Violation. A Neutral or party may report to the assigned Magistrate Judge
any failure to attend a mediation conference, to substantially comply with the mediation
Referral Order, or to otherwise participate in the Pilot Mandatory Mediation Program
process in good faith.

B. Proceedings and Sanctions in Response to Report of Violation. Upon receipt of

such a report, the Court may take whatever actions it deems appropriate, including
issuing an order to show cause why sanctions should not be imposed. Show cause
hearings shall be conducted on the record, but under seal. If sanctions are imposed,
objections thereto and any other comment thereon shall be filed with the Court within
fourteen (14) days from the date of the notice of sanctions and contemporaneously
served on all other counsel, unrepresented parties and the Neutral.

2.4 EVALUATION OF THE MANDATORY PILOT MEDIATION PLAN

Congress has mandated that the Courts’ ADR programs be evaluated. Neutrals, counsel and
parties shall promptly respond to any request from the Court for an evaluation of the
Mandatory Pilot Mediation Program. Responses will be used for research and monitoring
purposes only. The sources of specific information will not be disclosed to the assigned Judge
or in any report. The prepared report on this Pilot Mandatory Mediation Program will also be
used by the Board of Judges and the Court’s ADR Committee to determine if this program
should be continued beyond the Pilot program period.

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 SECTION 3 - NEUTRALS

3.1 NEUTRALS

A. Neutral Panel for the Pilot Mandatory Mediation Program. The Court shall select
a panel of Neutrals to serve on the Pilot Mandatory Mediation Program. The number
of Neutrals will be decided by the Court after receiving a recommendation from the
ADR Committee on the number of anticipated Neutrals that will be necessary to
address the caseload during the two-year Pilot program. Membership on any of the
Court’s ADR panels is a privilege, not a right. The Court shall have the authority to
establish qualifications for Neutrals, monitor their performance and withdraw any
Neutral from a panel. The Neutrals selected by the Court will be posted on the external
website for selection by the parties in cases from Albany, Binghamton, Utica, Syracuse
and Plattsburgh.

B. Private Neutrals. The parties may select a Neutral who is not a member of the Court’s
Pilot Mandatory Mediation Program Panel. Such selections are presumed acceptable
unless the assigned Judge determines that the interests of justice are not served.

C. Training. The requirements for training will be established by the Court in

consultation with the Northern District ADR Committee. Participation in required
training programs will be mandatory.

D. Oath. All persons serving as Neutrals shall take the oath or affirmation prescribed in
28 U.S.C. § 453.

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E. Disqualification and Unavailability of Neutrals.

1. Disqualification. A Neutral serving on the Panel for the Pilot Mandatory

Mediation Program may be disqualified for bias or prejudice, pursuant to 28
U.S.C. § 144. A Neutral shall disqualify himself or herself in any case in which
a justice, judge or magistrate judge would be disqualified pursuant to 28 U.S.C.
§ 455, subject to the waiver provision of 42 U.S.C. § 455(e).

2. Notice of Recusal. A Neutral serving on the Panel for the Pilot Mandatory
Mediation Program who discovers a circumstance requiring disqualification shall
immediately notify all counsel, unrepresented parties and the Court. A new
Neutral serving on the Panel for the Pilot Mandatory Mediation Program shall
be selected by agreement of the parties or, in the event the parties are unable
to agree, by the Court.

3. Objections to Selected Neutral. Prior to the issuance of an Order designating

a Neutral serving on the Panel for the Pilot Mandatory Mediation Program, the
Court will contact the selected Neutral who will review the case for possible
conflicts. Following issuance of the Court’s Order, a party who believes a
disqualifying conflict exists should first confer with the Neutral. If the matter is
not resolved by, for example, waiver or recusal, a motion and supporting
affidavit shall be filed with the Court with the assigned magistrate judge within
fourteen (14) days from the Court’s Order, stating the facts and the reasons for
the belief that a disqualifying conflict, bias or prejudice exists. In the event a
conflict or other objection does not become apparent until after the Mandatory
Mediation process has commenced, a motion for disqualification must be made
at the earliest opportunity or the objection is waived.

134
 4. Unavailability. A selected Neutral serving on the Panel for the Pilot Mandatory
Mediation Program who later becomes unable to serve within the time period set
forth in the Court’s Scheduling or Referral Order shall notify all counsel,
unrepresented parties and the Court. A new Neutral serving on the Panel for
the Pilot Mandatory Mediation Program shall be selected by agreement of the
parties or, in the event the parties are unable to agree, by the Court.

3.2 IMMUNITIES

All persons serving as Neutrals in the Court’s Pilot Mandatory Mediation Program are
performing quasi-judicial functions and are entitled to all the immunities and protections that
the law accords to the performance of tasks integrally related to the judicial process, including
settlement and alternative dispute resolution. See, e.g., Wagshal v. Foster, 28 F.3d 1249
(D.C. Cir. 1994).

SECTION 4 - APPROVED ADR PLAN INTERVENTIONS

4.1 ADR INTERVENTIONS

A. Timing. Timing will be decided by the assigned Magistrate Judge. It is the intent of
the program to have cases proceed into the Pilot Mandatory Mediation Program as
early as possible in the case.

B. Scheduling. The referral of a case to the Pilot Mandatory Mediation Program does
not delay or defer other dates established in the Scheduling Order and has no effect
on the scheduled progress of the case toward trial.

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4.2 SELECTING CASES.

A. New Cases. Prior to the Local Rule 16.1 scheduling conference, counsel and any
unrepresented parties shall confer about the Pilot Mandatory Mediation Program as
part of their discussion of “the possibilities for a prompt settlement or resolution of the
case” pursuant to Fed. R. Civ. P. 26(f). The parties shall attempt to agree upon a
Neutral and, at the scheduling conference, shall be prepared to report on the outcome
of their discussion pursuant to Local Rule 16.1(d). The initial Scheduling Order shall
include a deadline for the completion of the Mandatory Mediation session.

B. Pending Cases. In pending cases, all sua sponte referrals will be into the Pilot
Mandatory Mediation Program.

4.3 MULTIPLE PILOT MANDATORY MEDIATION INTERVENTIONS

A. Initial Intervention. Generally, a first Pilot Mandatory Mediation Program session will
be scheduled within twelve (12) weeks after the Local Rule 16.1 conference. The
minimum duration for the first session is two (2) hours, but the parties are encouraged
to spend additional time unless the Mediator agrees that additional time would not be
productive.

B. Additional Interventions. If the initial mediation session is not successful in resolving

the case, but the parties agree that an additional session(s) would be helpful, the
process will be scheduled as set forth below:

1. By the Mediator. The Mediator will, in consultation with the parties, schedule
subsequent sessions as needed to explore and evaluate the possibility of
reaching a mutually acceptable resolution. Additional sessions must be

136
 conducted within the date for completion of Mandatory Mediation set forth in the
Court’s Scheduling or Referral Order.

4.4 CONFIDENTIALITY

Each of the interventions under this Plan shall be confidential as set forth in the corresponding
sections below.

SECTION 5 - PILOT MANDATORY MEDIATION

5.1 DESCRIPTION OF MEDIATION AND ITS PROCESS

The Pilot Mandatory Mediation Program Mediation, as defined in this General Order and Plan
is intended to offer a flexible, non-binding, confidential process in which a qualified Neutral,
the Mediator, facilitates resolution of the issues between the parties and assists with
settlement discussions. Through various methods and techniques, the Mediator seeks to
improve communication between the participants (parties, counsel, experts or whoever is
included in the mediation); helps participants articulate their interests; helps participants
understand the interests of the other participants, including their “opponent”; probes the
strengths and weaknesses of each party’s legal positions; and helps generate and define
options for a mutually agreeable resolution. The Mediator may engage in “reality checking”,
but will not give an overall evaluation of the case unless requested by all the parties. The
Mediator has no fact-finding or decision-making authority. The central tenet of mediation is
that the parties find their own solutions, with the assistance of the Mediator. A hallmark of
mediation is its capacity to go beyond traditional settlement discussions and explore creative
outcomes responsive to the participants’ needs and interests.

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5.2 QUALIFICATIONS OF MEDIATORS

A. Who May Qualify

Mediators serving as Neutrals in the Pilot Mandatory Mediation Program may be attorneys or
non-attorneys, with relevant experience. All Mediators must successfully complete initial and
periodic training as required by the Court.

To effectively assist ADR participants and the Court, Mediators must:

• Be knowledgeable about civil litigation in federal court;
• Have strong mediation process skills and the temperament to listen effectively
and facilitate communication between all participants and across “party” lines;
• Exhibit strong problem-solving skills and the ability to generate meaningful
options to assist parties and other participants with settlement negotiations.

5.3 COMPENSATION OF MEDIATORS

A. Mediators shall receive $150/hour for the first two hours of the initial mediation session.
This cost includes any necessary preparation time spent by the Mediator in preparing
for the initial session. Thereafter, Mediators shall receive no more than their Court-
approved hourly rates1 for time spent in mediation and preparation.

B. Mediators may require that counsel and/or parties sign an agreement confirming the
terms of retention and compensation.

C. Mediator fees shall be divided equally among all separately represented parties,
unless otherwise agreed or ordered by the Court.

1
Hourly rates during the pendency of the Pilot Program may not exceed $300.00 per
hour.

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138
D. A party who has been granted in forma pauperis2 status and is represented by counsel
is automatically relieved of his or her pro rata share of the Mediator’s fee. All other
parties shall continue to bear their pro rata portions of the fee.

E. A party who has not sought in forma pauperis status and is represented, but is
financially unable to pay all or part of the pro rata share of the Mediator’s fee, may
move for a waiver of the fee requirement on a form provided by the Court.

F. All Mediation Panel members must provide pro bono services. The minimum service
requirement is one pro bono case or two reduced compensation cases for every four
(4) fully-compensated cases for which the Mediator is selected. (For example, for
every four fully compensated cases the Mediator must perform one pro bono Assisted
Mediation either as Assisted Mediation Counsel or as the Mediator in an Assisted
Mediation case.)

5.4 SELECTION OF MEDIATOR

A. Pilot Mandatory Mediation Panel List. The Court shall maintain a list of Court
approved and trained Mediators for this Pilot Program. Each Mediator shall provide to
the Court information on his or her area(s) of expertise and compensation rates.

B. Private Mediators. The parties may select a Mediator other than from the Court’s Pilot
Mandatory Mediation list. Such selections are presumed acceptable unless the
assigned Magistrate Judge determines that the interests of justice are not served.

2
Cases involving Pro Se Litigants are excluded from the Pilot Mandatory Mediation
Program and may be referred by the Court into the Assisted Mediation Program.

12

139
C. Selection.

1. Once the parties have stipulated or been referred to mediation, they shall have
twenty-eight (28) days from the date of the Local Rule 16.1 conference or ADR
Referral Order in which to select a Mediator, confirm the Mediator’s availability
including a conflict check and file a stipulation regarding their selection. The
Clerk shall send a copy of the ADR Scheduling and/or Referral Order to the
Mediator.

2. If the parties fail to agree upon a Mediator within the twenty-eight (28) day
period, the Court shall select a Mediator for the case from the Court’s Mediator
list and shall issue an Order notifying the parties of the Mediator’s identity.

5.5 SCHEDULING AND LOCATION OF THE MANDATORY MEDIATION

A. Scheduling. Promptly upon being selected, the Mediator shall conduct a telephone
conference, jointly or separately, with counsel and any unrepresented parties, to fix the
date and place of the mediation.

B. Timing. Unless otherwise ordered, a first mediation session shall be conducted within
twelve (12) weeks after the Local Rule 16.1 conference. In pending cases, mediation
shall be conducted in accordance with the Pilot Mandatory Mediation Referral Order.

C. Location. The mediation session shall be held in the Mediator’s office, unless
otherwise agreed. Space may be available at the U.S. Courthouse upon request
through the Clerk’s Office ADR Administrator.

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5.6 MEDIATION MEMORANDUM

A. Time for Submission. No later than seven (7) days before the scheduled mediation
session, each party shall submit to the Mediator a written “Mediation Memorandum.”

B. Prohibition Against Filing. Mediation Memoranda shall not be filed and the assigned
Judge shall not have access to them. They shall be subject to the confidentiality of the
mediation process and treated as a document prepared “for settlement purposes only.”

C. Content of Mediation Memoranda. Mediation Memoranda must not exceed ten (10)
double-spaced pages and shall:

1. Identify by name and title or status:

a. All person(s) with factual knowledge and/or settlement authority, who, in

addition to counsel, will attend the mediation as a representative(s) of the
party; and

b. Any other person(s) (including an insurer representative) whose

presence might substantially improve the effectiveness of the mediation
or the prospects of settlement;

2. Concisely describe the parties’ claims and defenses, addressing the parties’
views of the key liability issues and damages, and discussing the key evidence;

3. State the relief sought in the case and the basis for monetary calculations;

4. Describe the current status of the case, including the status of any motions
made;

14

141
 5. Describe the history and current status of settlement negotiations, including
offers and counteroffers; and

6. Provide any other information that might be pertinent to resolution of the case,
including possible settlement options and alternatives.

Parties should include, along with the Mediation Memorandum, copies of documents
that are likely to make the mediation more productive or materially advance settlement
prospects.

5.7 COMMUNICATIONS WITH THE MEDIATOR

After receiving Mediation Memoranda and submissions pursuant to Section 5.6, the Mediator
may request additional information from any party or participant. The Mediator, at his or her
discretion, may also discuss the case in confidence and ex parte with counsel, parties and/or
representatives. The Mediator shall not disclose any confidential communication, including
the Mediation Memoranda and submissions, without permission.

5.8 ATTENDANCE AND PARTICIPATION

A. Parties. All named parties and their counsel are required to attend the mediation
session(s) in person unless excused under 5.8(E) below.

1. Corporation or other entity. A party other than a natural person (e.g. a

corporation or some other entity or association) satisfies this attendance
requirement if represented by one or more persons, other than outside counsel,
who have authority to settle and who are knowledgeable about the facts and
circumstances of the case and the claims being made.

15

142
 2. Government entity. A unit or agency of government satisfies this attendance
requirement if represented by one or more persons who have, to the greatest
extent feasible, authority to settle, and who are knowledgeable about the facts
of the case, the agency’s or unit’s position, and the procedures and policies
under which the agency or unit decides whether to enter into proposed
settlements. If the action is brought by the government on behalf of one or
more individuals, at least one such individual shall also attend.

B. Counsel. Each party shall be accompanied at the mediation session by the attorney
who will be primarily responsible for handling the trial of the matter and/or is most
familiar with the matter at that stage of the proceeding.

C. Insurers. Insurer representatives are required to attend in person if their agreement

is necessary to achieve a settlement, unless excused under 5.8(E) below.

D. Other Attendees. The Mediator may require the attendance of any other individual
who appears reasonably necessary for the advancement of communication and
resolution between the parties.

E. Request to be Excused. Any person who is required to attend a mediation session

may be excused from attending in person only after showing that personal attendance
would impose an extraordinary or otherwise unjustifiable hardship. Not less than
fourteen (14) days before the date set for the mediation, a person seeking to be
excused must submit a letter to the Mediator with copies sent to all other counsel and
unrepresented parties, which states (the letter should not be filed with the Court):

1. All considerations that support the request; and

2. Whether the other party or parties join in or object to the request.

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143
 Any party opposing the request shall submit a written statement to the Mediator of
opposition no less than seven (7) days prior to the mediation (the opposition document
should not be filed with the Court).

The Mediator shall promptly make a determination as to the necessity of the person’s
attendance and may require personal participation, permit participation by telephone,
or excuse the person’s presence altogether. The Mediator’s decision shall be final.

F. Participation by Telephone. A person excused from appearing in person at a

mediation session shall be available by telephone or otherwise be available as the
Mediator may direct.

G. Good Faith Participation in the Process. All parties and counsel shall participate in
mediation in good faith. Failure to do so shall be sanctionable by the Court.

5.9 THE MEDIATION SESSION

A. The first mediation session shall be a minimum of two (2) hours. The parties may, and
are encouraged to, extend the length of the session.

B. The mediation session shall be conducted in accordance with the process described
in detail by the Mediator during the opening of the mediation. The process may
include, as appropriate and necessary, the following:

• Mediator “opening statement” and introduction to the process and session

• An opportunity to present each party’s positions, claims and concerns
• Joint sessions with all parties participating
• Various “caucus” sessions in which the Mediator meets with one or more parties
and/or their counsel, as the Mediator deems appropriate

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144
C. The Mediator shall have discretion to structure the mediation so as to maximize the
benefits of the process.

D. Any communications to the Mediator during a “caucus” shall not be disclosed by the
Mediator to any other party without permission.

E. The mediation session shall be informal, and conducted with civility.

5.10 CONFIDENTIALITY IN MEDIATION

A. Confidential Treatment. Mediation is confidential and private. No participant in the

mediation process or any portion thereof may communicate confidential information
acquired during mediation without the consent of the disclosing party. There shall be
no stenographic or electronic recording, e.g., audio or visual, of the mediation process.

1. All written and oral communications made in connection with or during the
mediation session, any positions taken and any views of the merits of the case
formed by any participant, including parties, counsel and the Mediator, are
privileged and confidential.

2. There shall be no communication between the assigned Judge or designated

Magistrate Judge and the Mediator regarding a case referred for mediation.

3. No communication made in connection with or during any mediation session

may be disclosed or used for any purpose including impeachment in any
pending or future proceeding in the Court.

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145
 4. The confidentiality of information disclosed during mediation does not prohibit
or limit:

a. the Court from collecting information relative to evaluation of the

Pilot Mandatory Mediation program;

b. the Mediator from reporting a failure to participate in the Pilot

Mandatory Mediation process in good faith, except that the
Mediator shall not disclose the content of confidential
communications;

c. the Mediator from filing “Mediation Certification” forms pursuant to

5.11;

d. a party from seeking to enforce a settlement agreement;

e. a party from disclosing the final resolution and settlement reached

unless, in the interest of justice, the parties have agreed to the
confidentiality of same; or

f. a participant from making such disclosures as are required by law.

5.11 CONTINUED MEDIATION AND REPORTS

A. At the close of the initial mediation session, the Mediator and the parties shall jointly
determine whether it would be appropriate and helpful to then schedule additional
mediation. Follow-up could include, without limitation, written reports, telephonic
discussions, negotiations between the parties with the Mediator available for
assistance, or further mediation sessions.

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146
B. Within seven (7) days after the close of each mediation session, and on the form
“Mediation Certification” provided by the Court, the Mediator shall report to the Court
the date the session was held, whether the case settled in whole or in part and whether
any follow up is scheduled. The Mediation Certification shall be filed.

C. The Clerk of Court will provide the attorneys, parties, and mediator with survey
questions regarding the Pilot Mandatory Mediation Program. The information gathered
during the survey period at the conclusion of each mediation will be used by the Board
of Judges and ADR Committee to study the effectiveness of this program.

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147
 
 
 
 

148
DISCOVERY (OTHER THAN DEPOSITIONS)

by

PATRICK MCCORMICK, ESQ.

Campolo, Middleton, & McCormick, LLP

Bohemia

149
150
 Federal Civil Practice: Discovery (other than Depositions)
Overview:

Rule 26 contains the general provisions governing discovery. It sets forth the general
discovery procedures, controls the scope of inquiry and imposes a duty to supplement discovery
responses. The general provisions in Rule 26 apply the specific discovery devices in Rules 27
through 37. The following materials focus on only a few of the discovery obligations and
mechanisms available in Federal practice.

Rule 26(f) – Conference of the Parties; Planning for Discovery

Rule 26(a) – Required Disclosures
Rule 26(b) – Discovery Scope and Limits
Rule 34 – Requests for Document Production
Rule 33 – Interrogatories
Rule 36 – Requests for Admission

I. Rule 26(f) – Mandatory Meeting

a. Conference of the Parties; Rule 26(f)(2):

i. In conferring, the parties must consider the nature and basis of their claims
and defenses and the possibilities for promptly settling or resolving the
case; make or arrange for the disclosures required by Rule 26(a)(1);
discuss any issues about preserving discoverable information; and
develop a proposed discovery plan. The attorneys of record and all
unrepresented parties that have appeared in the case are jointly responsible
for arranging the conference, for attempting in good faith to agree on the
proposed discovery plan, and for submitting to the court within 14 days
after the conference a written report outlining the plan. The court may
order the parties or attorneys to attend the conference in person.

b. Discovery Plan; Rule 26(f)(3):

i. A discovery plan must state the parties’ views and proposals on:
1. What changes should be made in the timing, form, or requirement
for disclosures under Rule 26(a), including a statement of when
initial disclosures were made or will be made;
2. The subjects on which discovery may be needed, when discovery
should be completed, and whether discovery should be conducted
in phases or be limited to or focused on particular issues;
3. Any issues about disclosure or discovery of electronically stored
information, including the form or forms in which it should be
produced;***
4. Any issues about claims of privilege or of protection as trial-
preparation materials, including--if the parties agree on a
procedure to assert these claims after production--whether to ask

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 the court to include their agreement in an order;
5. What changes should be made in the limitations on discovery
imposed under these rules or by local rule, and what other
limitations should be imposed; and
6. Any other orders that the court should issue under Rule 26(c) or
under Rule 16(b) and (c).

c. Timing; Rule 26(f)(1):

i. The court schedules the initial conference.

ii. Parties must conduct a discovery meeting at least 21 days before the initial
scheduling conference.
iii. Parties make their voluntary disclosures within 14 days after the initial
discovery meeting.
iv. Scheduling order shall be entered as soon as practicable after the Court has
received the required report from the parties under Rule 26(f), but in any
event the order shall be issued within 90 days after the appearance of a
defendant and within 120 days after the complaint has been served on a
defendant.

d. Failure to obey an order entered under Rule 26(f):

i. Sanctions may be imposed under Rule 37(b) if a party fails to obey an

order entered under Rule 26(f).
ii. See Boyer v. Riverhead Central School District, 2006 WL 3833040
(E.D.N.Y. 2006) (Rule 37(b) provides for the imposition of sanctions “if a
party ... fails to obey an order ... to provide or permit discovery, ... or fails
to obey an order entered under Rule 26(f).” Among the factors relevant to
a court's exercise of its discretion to impose sanctions are: (1) the
wilfulness of the non-compliant party or the reason for the noncompliance;
(2) the efficacy of lesser sanctions; (3) the duration of the non-compliance,
and (4) whether the non-compliant party has been warned of the
consequences of non-compliance.).

e. No discovery until after the Rule 26 meeting:

i. Pursuant to Rule 26(d) a party may not seek discovery from any source
before the parties have conferred as required by 26(f). Desilva v. North
Shore – Long Island Jewish Health System Inc., 2010 WL 3119629
(E.D.N.Y. 2010).

f. Modification of scheduling order:

i. Pursuant to Rule 16(b)(4), a schedule may be modified only for good

cause and with the judge's consent.

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 g. Discovery cut off:

i. Federal Rules are silent on discovery cut off – usually dealt with by
stipulation of the parties or by court order.
ii. The parties should distinguish between expert and non-expert discovery,
as the cut off for expert discovery may be later than non-expert discovery.
iii. Discovery can proceed up to and during trial, in the event a witness not
previously identified is called or disclosed on the eve of trial, or when the
existence or relevancy of documents is made known on the eve of trial or
through testimony at trial.
iv. A party seeking to reopen discovery has the burden of establishing good
cause. See Spencer v. International Shoppes, Inc., 2011 WL 3625582
(E.D.N.Y. 2011) (a party seeking to reopen discovery bears the burden of
establishing good cause and discovery should not be extended when there
was ample opportunity to pursue the evidence during discovery).
v. Courts apply a six-part test to analyze a request to reopen discovery:
1. whether trial is imminent,
2. whether the request is opposed,
3. whether the non-moving party would be prejudiced,
4. whether the moving party was diligent in obtaining discovery
within the guidelines established by the court,
5. the foreseeability of the need for additional discovery in light of
the time allowed for discovery by the district court, and
6. the likelihood that the discovery will lead to relevant evidence.

II. Document Discovery:

a. Mandatory Initial Disclosures; Rule 26(a)(1):

i. General considerations:

1. Under this section, disclosure is automatic – there is no need for a

demand or request.
2. Pursuant to Rule 26(a)(1)(E), parties must disclose what is
“reasonably available.” A party cannot avoid the initial disclosure
requirements by claiming that its investigation is not yet complete.
3. Disclosure should be in writing, signed and served on the other
parties. The signature constitutes a certification that the disclosure
is complete and accurate under Rule 26(g)(1).
4. A party disclosing documents subject to automatic disclosure
obligations does not waive its right to object to the production of
these documents in response to formal discovery requests served
under Rule 34.

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ii. Automatic disclosure of the following categories of information; Rule
26(a)(1)(A):

1. Witnesses – name and if known, address and telephone number, of

each individual likely to have discoverable information.
2. Documents – must provide a copy of, or a description by category
and location of, all tangible things that the disclosing party may
use to support its claims or defenses.
3. Damages Computation – each party must provide a computation of
any category of damages claimed by that party, and provide non-
privileged documents supporting the computation bearing on the
nature and extent of injuries suffered.
a. The parties cannot merely describe all documents
supporting a party’s damages claim – all documents
reasonably available to the producing party must be
provided to the adversary or made available for copying
and inspection.
4. Insurance – each party must provide all insurance policies that
may provide coverage for part or all of any judgment that might be
entered in the action.

iii. Strategic considerations:

1. Pleadings should be drafted with as much factual and legal basis

for the claims as possible. Detailed allegations in the pleadings will
give the defendant’s counsel less discretion to argue that certain
documents are not relevant under the automatic disclosure
requirements.

iv. Failure to disclose:

1. Pursuant to Rule 37(a), failure to disclose can result in the

exclusion of the undisclosed witness or information. However,
under Rule 37(c)(1), the failure may be excused if it was harmless
or there was substantial justification.
a. A common sense standard is used to interpret the meaning
of substantial justification – if there is room for honest
disagreement among the parties, there is substantial
justification for a party’s failure to disclose.
b. See Preuss v. Kolmar Laboratories, Inc., 2013 WL
4766395 (S.D.N.Y. 2013) (substantial justification for non-
disclosure of individuals likely to have discoverable
information is defined as justification to a degree that could
satisfy a reasonable person that parties could differ as to
whether the party was required to comply with the
disclosure request; the test of substantial justification is

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 satisfied if there exists a genuine dispute concerning
compliance).
2. Preclusion is not mandatory. See Design Strategy, Inc. v. Davis,
469 F.3d 284, 297 (2d Cir. 2006) (preclusion of evidence for
failing to make required disclosure is not mandatory once the trial
court finds that there is no substantial justification and the failure
to disclose is not harmless; the plain text of the rule provides that,
if an appropriate motion is made and a hearing has been held, the
court does have discretion to impose other, less drastic, sanction).
3. However, in the absence of substantial justification, a court may
impose sanctions. See Lliguichuzhca v. Cimena 60, LLC, 2013 WL
440596 (S.D.N.Y. 2013) (court granted plaintiff’s motion in limine
to preclude defendants from calling certain witnesses at trial based
upon defendant’s failure to disclose the existence of the individuals
as mandated by Rule 26(a)(1)(A)(i)). See also, Ventra v. U.S., 121
F. Supp. 2d 326, 332 (S.D.N.Y. 2000) (the purpose Rule 37(c)(1)
is to prevent the practice of “sandbagging” an adversary with new
evidence).

b. Disclosure of Expert Testimony; FRCP 26(a)(2):

i. General Rules:

1. Expert disclosures are automatically required, without any need for

a request or demand.
2. Requires the disclosure of the identity of any person who “may be
used at trial to present evidence” under the FRE governing expert
testimony.
3. A party must produce an expert report for an employee only if the
employee’s duties regularly involve giving expert testimony or the
employee was specifically employed to provide expert testimony.

ii. Timing:

1. In the absence of a court order or stipulation, the expert disclosures

must be made 90 days before the trial date.

iii. Content of disclosure:

1. Must contain the identity of any witness who may provide expert
testimony.
2. For those witnesses retained or specifically employed to provide
expert testimony, the disclosure must include an expert report that
contains:
a. A complete statement of all opinions the witness will
express and the basis and reasons for them;

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 b. the facts or data considered by the witness in forming them;
c. any exhibits that will be used to summarize or support
them;
d. the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
e. a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
f. a statement of the compensation to be paid for the study
and testimony in the case.
3. For all other experts, the disclosure must contain:
a. the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703,
or 705; and
b. a summary of the facts and opinions to which the witness is
expected to testify.
4. Expert testimony solely to contradict or rebut the testimony
disclosed by another party must be disclosed within 30 days after
the disclosure by the other party.

iv. Failure to Disclose:

1. Failure to disclose an expert report meeting the requirements of

Rule 26(a)(2)(B) may preclude the party from introducing the
testimony as evidence on a motion, at a hearing, or at trial, either
all together or as to specific opinions not disclosed in the report.
2. Sanctions are “automatic and mandatory” unless the party failing
to disclose can show the failure was justified or harmless.

c. Discovery Scope and Limits; Rule 26(b)(1) and (2):

i. What is discoverable:

1. Discovery is allowed of any matter that is relevant to the claim or

defense of any party in the pending action and is not privileged.
a. Relevant – not defined by the Rules. Courts have defined
relevant to encompass “any matter that bears on, or that
reasonably could lead to other matters that could bear on,
any issue that is or may be in the case.”
b. See Giacchetto v. Patchogue-Medford Union Free School
Dist., ---F.R.D.---, 2013 WL 2897054 (E.D.N.Y. 2013)
(definition of relevancy under rule authorizing discovery of
“matter that is relevant to any party's claim or defense” is to
be construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter that could
bear on, any issue that is or may be in the case). Thus, a

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 party may discover any claim, issue or defense that is
pleaded in the case, regardless of which party raises the
claim, issue or defense.
2. Pursuant to Rule 26(b)(1), the scope can be expanded by the court
for “good cause” to matters relevant to the subject matter involved
in the action.
3. Pursuant to Rule 26(b)(1), evidence need not be admissible to be
relevant, and thus discoverable.
4. A party must provide information and documents it possesses,
regardless of who else possesses that information. Land Ocean
Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 240 (W.D.N.Y.
1998) (unless excused by a court order, a requested party must
provide relevant discovery regardless of whether it is already
available to the requesting party).
5. Discovery is generally allowed of matters that would be used to
impeach other parties’ witnesses (e.g. criminal convictions and
prior statements). See Currie v. City of New York, 2012 WL
832256 (E.D.N.Y. 2012) (generally, parties may utilize discovery
to obtain information for impeachment purposes, particularly for
uncovering prior acts of deception; however, such discovery
relating to a witness' credibility must be reasonably likely to lead
to admissible evidence).

ii. Limitations on discovery:

1. A party can make an objection to the particular request for

production or a party can make a motion for a protective order
under Rule 26(c).
2. Rule 26(b)(2)(C) requires that the court limit discovery in 3
circumstances:
a. If the discovery is unreasonably cumulative or duplicative,
or can be obtained from another source that is more
convenient, less burdensome, or less expensive;
b. If the party seeking the discovery has already had ample
opportunity to obtain the information in discovery; or
c. If the burden or expense of the discovery outweighs the
likely benefit, considering all the circumstances of the case.

iii. Failure to comply with discovery requests:

1. Disputes must first be dealt with by a good-faith effort on the part

of the parties to resolve their dispute.
2. To discourage parties from unnecessarily seeking judicial
intervention, Rule 37 provides for the imposition of sanctions on a
party that has improperly managed the discovery process.

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 a. See Valentini v. Citigroup, Inc., 2013 WL 4407065
(S.D.N.Y. 2013) (court imposed sanctions pursuant to Rule
37(c)(1)(A) based upon Plaintiff’s failure to comply with
discovery obligations and counsels’ failure to advise their
clients of their discovery obligations and to ensure that the
relevant documents were produced).

d. Informal discovery:

i. Obtaining documents from sources other than the parties to an action

provide for an often under-utilized and potentially very important means
of discovery.
ii. Informal discovery can be used before the discovery phase because such
information can be used to determine the strengths and weaknesses of a
case, and in crafting pleadings.
iii. Sources of informal discovery:
1. Publically available information
a. Articles in the media
b. Annual reports
c. Adversaries website (check back often to see if it has been
updated)
d. General search of the internet
e. FOIA requests
2. Similarly situated litigants
a. Search of public filings and court dockets can identify
related or similar cases, the parties and their counsel.
Parties may be willing to share information and documents
about similar lawsuits.
3. Informal exchange with adversary
a. Informal exchange of core documents among the parties
can foster quick settlement of some or all issues in dispute.

e. Issues to address with clients:

i. As soon as possible, counsel should meet with clients to determine the

manner in which documents are created, used, exchanged, store, retrieved,
preserved and destroyed in the course of business.
ii. Counsel should determine what types of documents exist and who is likely
to possess them.
iii. Counsel should speak with someone that is knowledgeable about both
physical documents and electronically stored documents.
iv. Document retention policies – need to address the way in which
documents have been retained in the past and how they must be retained
moving forward in the litigation.
1. Counsel should review written document retention policies and
determine if the client is in compliance with such policies.

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 2. Counsel should prepare a document retention protocol for the
client as soon as litigation becomes foreseeable. It is imperative to
remind clients that document destruction will not be tolerated.

f. Local Rules:

i. Many district courts have promulgated local rules that modify or

supplement the provisions set forth in the Federal Rules. Before
proceeding on any manner, it is very important to check the local District
Court rules and/or the judge’s individual rules.

III. Electronic Discovery:

a. Counsel’s duty to know the client’s computer system:

i. It is critical for attorneys to consider all aspects of electronic discovery

before the discovery process begins and before the Rule 26(f) meeting.
ii. Specifically, Rule 26(f)(3)(c) requires that the parties discuss any issues
about disclosure or discovery of electronically stored information (“ESI”).
Thus, it is crucial that prior to the Rule 26(f) meeting, counsel has a solid
understanding of their client’s electronic system.
iii. The list below is provides some general considerations of what should be
discussed with a client and understood by counsel prior to the Rule 26(f)
meeting.

b. Counsel should know:

i. The identity of the persons most knowledgeable about the ESI systems.
ii. When preservation duties and privileges attached.
iii. The data that it at the greatest risk of alteration or destruction.
iv. The type of computer system(s) used.
v. The type of electronic formats used.
vi. The anticipated volume of ESI that is potentially relevant to the matter.
vii. How information is transmitted (whether through a mainframe system
with a server or through individual desktop computers).
viii. Whether employees can operate their computers in a stand-alone mode
with access limited to that terminal. If so, documents from each individual
computer will have to be gathered rather than from a centralized network.
ix. Whether documents need to be gathered from employees’ home
computers or laptops.
x. Whether there is a method for organizing and identifying the subject
matter and author of computer files, both on paper and computer files.
xi. Identify major subdirectories where files are stored that relate to the
subject matter of the litigation.

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 xii. How the client’s back-up system works and the manner and frequency in
which information is transferred to the back-up system, and how often
information is deleted from that system.

c. Counsel should advise clients:

i. Litigation hold:
1. Once a party reasonably anticipates litigation, it must suspend its
routine document retention/destruction policy and put in place a
“litigation hold” to ensure the preservation of relevant documents.
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.
2003).
2. A party’s discovery obligations do not end with the
implementation of a litigation hold—to the contrary, that’s only the
beginning. Counsel must oversee compliance with the litigation
hold, monitoring the party’s efforts to retain and produce the
relevant documents. Proper communication between a party and
her lawyer will ensure (1) that all relevant information (or at least
all sources of relevant information) is discovered, (2) that relevant
information is retained on a continuing basis; and (3) that relevant
non-privileged material is produced to the opposing party.
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y.
2004).
ii. “Deleted” files may not really be deleted:
1. Employees may “delete” information from their computers but that
information is not actually deleted from the hard drive and/or
server. Once litigation has commenced, employee cannot
permanently delete these files.

d. Discovery of electronic information:

i. Computer data is discoverable under Rule 34(a).

ii. Producing party is required to provide electronic documents and
information in a form that is intelligible to the requesting party (it serves
no purpose to produce information that can only be understood on the
producing party’s computer system).

e. Cost of electronic discovery:

i. The cost of producing electronic information may be allocated to either

party in the court’s discretion.
ii. When allocating costs, courts may balance the probable probative valve of
the requested information against the expense and burden of retrieving the
data and may consider whether the responding party will benefit in any
way from the retrieval.

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 iii. The leading case is Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309
(S.D.N.Y. 2003). The seven-factor test used to determine cost-shifting for
electronic data discovery is:
1. the extent to which the request is specifically tailored to discover
relevant information;
2. the availability of such information from other sources;
3. the total cost of production, compared to the amount in
controversy;
4. the total cost of production, compared to the resources available to
each party;
5. the relative ability of each party to control costs and its incentive to
do so;
6. the importance of the issues at stake in the litigation; and
7. the relative benefits to the parties of obtaining the information. The
factors considered in the analysis of cost-shifting for discovery of
electronic data should not be weighted equally.

f. Sanctions for lost electronic materials:

i. Rule 37(e) provides that 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 routine, good-faith
operation of an electronic information system.
ii. However, when documents are intentionally destroyed or document
retention practices are not properly implemented, sanctions may be issued.
1. See Sekisui American Corp. v. Hart, --- F.Supp.2d --- (S.D.N.Y.
2013), (corporation's failure to implement appropriate document
retention practices in connection with its breach of contract action
against former CEO of its acquired medical diagnostic products
manufacturer and his wife constituted gross negligence, as required
for negative inference instruction against corporation due to
destruction of evidence; no litigation hold was issued by
corporation until 15 months after notice of claim was sent to
former CEO and his wife, and once hold was issued, it took
corporation another six months to notify its information technology
vendor of its duty to preserve evidence).

g. Limitations on electronic discovery:

i. Rule 26(b)(2)(B) provides protections when a party believes that the

production of “electronically stored information” will result in
unreasonable burden or cost.
1. Party invoking the protection must identify the sources of
information that it is neither searching nor producing with
sufficient particularity that the requesting party can evaluate the
burden and cost of producing the information. If the requesting

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 party still believes that the information should be produced, the
parties must confer to see if they can resolve the issue without
court intervention. If an application is made to the court, the
responding party must show that the information is not reasonably
accessible, in terms of undue burden or cost.

IV. Requests for Document Production; Rule 34:

i. General Rules:

1. Requests cannot be served until after the Rule 26(f) meeting.

2. Limited in scope by Rule 26(b) to “any party’s claim or defense.”
3. Courts generally construe “control” as meaning that the responding
party has a legal right to obtain a document.
a. Documents are within a party's “control” if the “party has
the right, authority or practical ability to obtain the
documents from a non-party to the action.” In re NTL, Inc.
Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007).
4. Rule 34 applies to electronic documents as well as physical
documents.

ii. Document requests; Rule 34(a)(1) and (2):

1. A party may serve on any other party a request within the scope of
Rule 26(b)  to produce and permit the requesting party or its
representative to inspect, copy, test, or sample the following items
in the responding party’s possession, custody, or control: any
designated documents or electronically stored information--
including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations--stored in
any medium from which information can be obtained either
directly or, if necessary, after translation by the responding party
into a reasonably usable form; or any designated tangible things; or
to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it.

iii. Degree of Particularity – Rule 34(b):

1. Courts use an objective standard of reasonableness to determine

the degree of particularity required in requesting documents.
a. See Mallinckrodt Chemical Works v. Goldman, Sachs &
Co., 58 F.D.R. 348 (S.D.N.Y. 1973) (the reasonable
particularity requirement is not susceptible to exact

162
 definition; what is reasonably particular is dependent upon
the facts and circumstances in each case).
2. The requirement should be satisfied if a party frames a request
such that a reasonable person in the context of the litigation would
know what items are being requested.
3. A request for “any and all documents” relating to an identified
subject or category does not lack particularity.

iv. Time, Place and Manner of Production:

1. Rule 34(b)(2)(A) provides that a written response to a document

request must be made within 30 days of being served.
2. The time, place and manner for the actual production of documents
is generally agreed upon between counsel.
3. Pursuant to Rule 34(b)(2)(E)(i), parties must produce documents:
a. As they are kept in the usual course of business; or
b. Must organize and label them to correspond with the
categories in the document request.
4. Pursuant to Rule 34(b)(2)(E)(ii), parties must produce electronic
documents:
a. In the manner designated by the requesting party; or
b. In the way the electronically stored information is
“ordinarily maintained” or “in a reasonably useable form or
forms.”

v. Drafting Requests:

1. Identify what is needed based on the specific context of the case to

ensure that you will obtain responsive documents without
imposing unreasonable burden on the parties or being met with a
document dump.
2. It is useful to review with clients the document demands prior to
them being served to ascertain whether there are any additional
documents or categories of documents that should be included in
the request.

vi. Responding to Requests:

1. Parties must conduct a reasonable inquiry into potentially

responsive documents before serving their response.
2. Parties are obligated to construe requests reasonably. Failure to
produce requested documents on the ground that the request was
not specific as to which documents were requested may result in
sanctions. See In re Air Crash Near Clarence Center, New York,
On February 12, 2009, 277 F.R.D. 251, 254 (W.D.N.Y. 2011) 
(party resisting discovery bears the burden of specifically

163
 demonstrating why the requested discovery, which for documents
and things need only be described with reasonable particularity, is
objectionable).
3. The response must be signed by an attorney of record, which
constitutes a certification that, “to the best of the person’s
knowledge, information and belief” the response satisfies Rule
26(g)(1), is not interposed for an improper purpose, and is not
unduly burdensome.
4. Unsigned responses may be stricken pursuant to Rule 26(g)(2).
5. If a certification violates these requirements without substantial
justification, the court may impose sanctions under Rule 26(g)(3).

vii. Waiver of objections:

1. Objections not asserted in the response or in a later response may

be considered waived. See Labarbera v. Absolute Trucking, Inc.,
2009 WL 2496463 (E.D.N.Y. 2009) (it is well established that by
failing to respond or object to a discovery request in a timely
manner, a party waives any objection which may have been
available).
2. Waiver is not automatic, and a court has discretion to determine
when objections are waived.

V. Interrogatories to Parties; Rule 33:

a. General Rules:

i. Interrogatories are written questions served on a party that must be

answered in writing under oath.
ii. Interrogatories should be used strategically and reasonably. Used as broad
discovery tools, interrogatories can waste time and become unnecessary
distractions.
iii. Pursuant to Rule 33(b)(5), the named individual in an action or an officer
or an agent of a named corporate party must answer the interrogatories and
execute a verification.

b. Purpose:

i. Interrogatories are a tool that should be used to narrow issues and

streamline discovery.
ii. They can be used to learn about the adversary’s position in a case, such as
by seeking additional information regarding the allegations contained in
the complaint or answer.
iii. Interrogatories can be used to elicit information such as:
1. Dates and places of important events
2. Names of significant/relevant individuals

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 3. Descriptions of events
4. The grounds for opponents legal theories
5. Basis of opponents calculation of damages
6. Obtain more information about witnesses or experts disclosed
pursuant to Rule 26(a)
7. Structure and organization of a corporation

c. Timing:

i. Pursuant to Rule 33(b)(2), a party must respond within 30 days after

service of the interrogatories.
ii. Timing can always be altered by the stipulation of the parties or court
order.
iii. Pursuant to Rule 33(b)(4), any ground not stated in a timely objection is
waived unless the court, for good cause, excuses the failure.

d. Number of Interrogatories:

i. Pursuant to Rule 33(a)(1), a party may serve on any other party no more
than 25 written interrogatories, including “all discrete subparts.”
1. To be counted as a single interrogatory, courts, at a minimum,
require all parts and subparts of an interrogatory to concern
information of the same type.
2. Courts have held that interrogatory subparts are to be counted as
discrete subparts if they are not logically or factually subsumed
within and necessarily related to the primary question. Thus, if the
first question can be answered fully and completely without
answering the second question, then the second question is totally
independent of the first and not factually subsumed within and
necessarily related to the primary question. On the other hand,
multiple interrelated questions may constitute a single
interrogatory even though it requests that the time, place, persons
present, and contents be stated separately. Cramer v. Fedco
Automotive Components Co. Inc., 2004 WL 1574691 (W.D.N.Y.
2004) (quotation marks and citations omitted).

e. Scope:

i. Interrogatories may seek any information that is discoverable under Rule

26(b)(1).
ii. Interrogatories can be used to elicit legal conclusions, opinions, and the
application of law to facts, as Rule 33(a)(2) states in part: “an
interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact.” Such
interrogatories are known as contention interrogatories.

165
 1. If a party receives contention interrogatories early in an action, the
party may ask the court to defer its responses until the end of
discovery.

f. Drafting Tips:

i. Keep the interrogatories simple. Ask short and straightforward questions.

ii. No two interrogatories should ask for the same information.
iii. Interrogatories should not be unduly burdensome. If the requested
information is only remotely relevant and the responding party will have
to work hard to prepare the answer, the court is less likely to compel an
answer.
iv. Adopt a reasonable time limitation and geographical scope for the
requested information.
v. Use clear and simple terms so as to not confuse the responding party.

g. Answering Interrogatories:

i. Pursuant to Rule 33(b)(3), each interrogatory must be answered separately

and fully, meaning more than just identifying a process by which the
serving party may learn responsive information.
ii. Pursuant to Rule 33(b)(4), the grounds for objecting to an interrogatory
must be stated with specificity. Available objections include:
1. Relevance
2. Privilege
3. Undue burden
4. Confidentiality
5. Form

VI. Requests for Admission; Rule 36:

a. General Rules:

i. Pursuant to Rule 36(b), an admission obtained under Rule 36 conclusively

establishes the matter admitted. A Rule 36 admission is considered a
“judicial admission.”
1. See S.E.C. v. Batterman, 2002 WL 31190171 (S.D.N.Y. 2002)
(any matter admitted under Rule 36 is conclusively established
unless the court on motion permits withdrawal or amendment of
the admission).
ii. Because a party who has made a judicial admission may not controvert it
at trial, such an admission has been characterized as not being evidence at
all, but rather as a means of withdrawing a fact from contention. Thus, the
admitting party may not introduce evidence that contradicts the admission.
1. See Guadagno v. Wallack Ader Levithan Associates, 950 F. Supp.
1258, 1261 (S.D.N.Y. 1997) (a judicial admission is conclusive,

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 unless a court allows it to be withdrawn; ordinary evidentiary
admissions, in contrast, may be controverted or explained by the
party).
iii. An attorney for the party may sign the request for admission; it is not
necessary for the party or party’s agent to verify the responses.

b. Purpose:

i. Requests for admission are used as a discovery tool similar to

interrogatories and deposition questions.
ii. Think of requests for admission as cross-examination type questions.
iii. Requests for admissions should be framed as direct, “yes” or “no” type
questions, rather than opened ended questions used to expand potential
discovery, as typically found in interrogatories.

c. Scope:

i. Pursuant to Rule 36(a)(1): a party may serve on any other party a written
request to admit, for purposes of the pending action only, the truth of any
matters within the scope of Rule 26(b)(1) relating to:
1. facts, the application of law to fact, or opinions about either; and
2. the genuineness of any described documents.

d. Timing:

i. Requests cannot be served until after the Rule 26(f) meeting.

ii. Pursuant to Rule 36(a)(3), the party to whom the request is directed must
serve a written answer or objection within 30 days.

e. Responding to requests for admission:

i. Four basic options in responding:

1. Object to the request;
2. Admit the request in whole or in part;
3. Deny the request in whole or in part; or
4. State that the party had made a reasonable inquiry but still lacks
the knowledge to admit or deny the request.
ii. Pursuant to Rule 36(a)(4), 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. A denial must fairly respond to the substance
of the matter; and when good faith requires that a party qualify an answer
or deny only a part of a matter, the answer must specify the part admitted
and qualify or deny the rest.

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f. Drafting Tips:

i. A good request for admission should be short, clear, and suggest an

obvious answer.

g. Failure to Respond:

i. Pursuant to Rule 36(a)(3), failure to respond to a request for admission

within the applicable time period means that the matters about which the
requests inquire are deemed admitted. See Baker v. David A. Dorfman,
P.L.L.C., 2000 WL 420551 (S.D.N.Y. 2000) (as a consequence of the
failure to comply, the matters about which the requests to admit were
made are deemed admitted pursuant to the plain language of Rule 36(a)).

h. Withdrawing Admissions:

i. Pursuant to Rule 36(b), an admission may be withdrawn upon motion if:

1. Presentation of the merits will be served thereby; and
a. If the admission is clearly not true in light of the other facts
that have been developed about the case, the court will
likely allow withdrawal.
2. The party who obtained the admission will not be prejudiced by the
withdrawal.
a. Difficultly a party may face in proving its case because of
the sudden need to obtain evidence with respect to
questions previously deemed admitted.
ii. The focus is on the effect upon the litigation and the prejudice to the
resisting party, rather than focusing on the moving party’s excuse for an
erroneous admission.
iii. See Euler v. JetBlue Airways Corp., 2013 WL 1482749 (E.D.N.Y. 2013)
(Rule 36(b) provides that “the court may permit the withdrawal or
amendment of such admission if it would promote the presentation of the
merits of the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on
the merits.” As with most of the rules regarding discovery, the language of
the rule is permissive; the decision whether to permit withdrawal remains
within the sound discretion of the court.).

i. Sanctions:

i. Under Rule 37(c)(2), if a party fails to admit what is requested under Rule
36 and if the requesting party later proves a document to be genuine or the
matter true, the requesting party can seek the reasonable expenses,
including attorney’s fees, incurred in making that proof from the party
who failed to admit. See Herrera v. Scully, 143 F.R.D. 545 (S.D.N.Y.
1992) (party who fails to respond to pretrial discovery request for

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admissions regarding truth of matters is liable to requesting party for
reasonable expenses, including attorney fees, upon showing by requesting
party of genuineness of document or truth of matter that was subject of
request for admission; attorney who fails to respond properly to request is
also subject to sanctions).

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 BASIC FEDERAL CIVIL PRACTICE DISCOVERY

THE RULES, GUIDELINES, AND BEST PRACTICES

by

YVONNE E. HENNESSEY, ESQ.

Hiscock & Barclay LLP

Albany

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172
Basic Federal Civil Practice
Discovery
The Rules, Guidelines, and Best Practices
November 14, 2013

Yvonne E. Hennessey
Hiscock & Barclay, LLP

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I. DISCOVERY UNDER THE FEDERAL RULES OF CIVIL PROCEDURE

A. Scope of Disclosure

1. “Parties may obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense – including the existence,
description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of
any discoverable matter.” Fed. R. Civ. P. 26(b)(1).

2. Protective orders are governed by Rule 26(c).

a. Upon motion of a party or any person from whom discovery is

sought.

b. Must include a certification that the movant has in good faith

conferred or attempted to confer with the other affected parties in
an attempt to resolve the dispute without court action.

c. Upon a showing of good cause, a court may issue an order to

protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.

d. A form protective order is available on the court’s website

at www.nynd.uscourts.gov/documents/PatentProtectiveOrder.doc,
and also accompanies these materials as Appendix A.

B. Rule 16 Conference

1. The purpose of the conference is to prepare and adopt a case-specific

management plan that will be memorialized in a case management order.
L.R. 16.1(c).

2. The Rule 16 conference must be held within 120 days of filing of the
complaint. L.R. 16.1(c).

3. Counsel for the parties are requires to meet and confer at least 21 days in
advance of the Rule 16 conference as required by Rule 26(f).
L.R. 16.1(c).

4. The parties must file their jointly-proposed plan, or if they cannot reach
consensus, each party shall file its own proposed plan at least 14 business
days before the Rule 16 conference.

5. During the Rule 16 conference, the court will consider, and the parties are
required to be prepared to discuss, the following:

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 a. Deadlines for joinder of parties, amendment of pleadings,
completion of discovery, and filing of dispositive motions;

b. Trial date;

c. Requests for jury trial;

d. Subject matter and personal jurisdiction;

e. Factual and legal bases for claims and defenses;

f. Factual and legal issues in dispute;

g. Factual and legal issues upon which the parties can agree or which
they can narrow through motion practice and which will expedite
resolution of the dispute;

h. Specific relief requested, including method for computing

damages;

i. Intended discovery and proposed methods to limit and/or decrease

time and expense thereof;

j. Suitability of case for voluntary arbitration;

k. Measures for reducing length of trial;

l. Related cases pending before this or other U.S. District Courts;

m. Procedures for certifying class actions, if appropriate;

n. Settlement prospects; and

o. If the case is in the ADR track, choice of ADR method and

estimated time for completion of ADR.

L.R. 16.1(d).

C. Mandatory Disclosure

1. Rule 26(a)(1) requires parties to the action to voluntarily identify, at or

within 14 days after the parties’ Rule 16 conference unless a different time
is set by stipulation or court order:

a. Witnesses to the action;

b. Categories of documents that the party will be relying on in the

action and the location of those documents, including any source

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 of electronically-stored information that may contain relevant
information;

c. Insurance coverage; and

d. Damage calculations and documents on which the calculations are

made.

2. Rule 26(a)(2) governs the disclosure of Expert Witness Testimony.

a. “A party must disclose to the other parties the identity of any

witness it may use at trial to present [expert testimony].”

b. 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[,]” disclosure
must be accompanied by a report prepared and signed by the
witness that should contain:

(1) Complete statement of all opinions and the basis thereof;

(2) The facts or data considered by the witness in forming the

opinions;

(3) Any exhibits to be used as a summary of or in support for

the opinions;

(4) The witness’ qualifications, including a list of publications

authored by the witness within the preceding ten years;

(5) The compensation to be paid for the study and testimony;

and

(6) A listing of any other cases in which the witness has

testified as an expert at trial or by deposition within the
preceding four years.

c. Rule 26(b)(4) now provides work-product protection against

discovery regarding draft expert disclosures or reports and – with
three specific exceptions – communications between expert
witnesses and counsel.

D. Other Disclosure Devices

1. Interrogatories – Rule 33

a. Number of interrogatories is limited to “25 in number including all

discrete subparts.”

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 b. Leave of court required to serve more than the specified number of
interrogatories.

c. Answers to Interrogatories.

(1) Must be provided by:

(a) the party to whom they are directed; or

(b) if that party is an entity or governmental agency, by

any officer or agent, who must furnish the
information available to the party.

(2) Should be answered “separately and fully in writing.”

(3) Under oath, unless it is objected to.

(a) Objections should be stated with specificity.

(b) Any objection not raised is waived.

(4) Signed by the party making the answers.

(5) Answers are due within 30 days of service of the

interrogatories.

(6) Option to produce business records.

(a) Where the answer to an interrogatory may be

derived or ascertained from business records.

(b) The burden on requesting party is the same as

burden on the responding party to determine
answer.

(c) Records must be specified in sufficient detail to

allow the requesting party to locate and identify the
relevant records.

2. Notice to Produce Documents – Rule 34

a. No limit on number of requests that may be served on a party.

b. Demand for production shall specify:

(1) Either by individual item or category, the items to be

inspected.

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 (2) A reasonable time, place, and manner of making the
inspection.

c. A written response is due within 30 days of service of the demand.

d. Documents produced for inspection can be produced as they are

kept in the regular course of business of the answering party.

e. Subpoena required for production of documents from a non-party.

3. Deposition Upon Oral Examination – Rule 30

a. Number of depositions limited to ten for “plaintiffs,” “defendants,”

and “third-party defendants” unless leave is granted by the court.
Rule 30(a)(2)(A).

(1) Limitation is for each class of party, not each party.

(2) Multiple plaintiffs, defendants, and third-party defendants,

as a whole, are limited to ten depositions.

b. Length of deposition is limited to one day of seven hours unless

leave is granted by the court. Rule 30(d)(2).

c. The deposition of a party is obtained by service of a Notice of

Deposition.

(1) States the time and place for the taking of the deposition.

(2) Name and address of person to be examined.

(3) Method by which deposition is to be taken.

(a) Expense of recording deposition is borne by party

taking deposition.

(b) A party wanting to supplement method of recording

a deposition can serve a notice specifying such
other method.

(4) May be accompanied by Request for Production of

Documents pursuant to Rule 34 of the Federal Rules of
Civil Procedure.

(5) Rule 30(b)(6) Notice or Subpoena Directed to an

Organization.

(a) Names a public or private corporation, partnership,

association, or governmental agency and describes

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 with reasonable particularity the matters upon
which examination is requested.

(b) The responding party designates one of more

directors, officers, or managing agents who will
testify on its behalf and the subject matter of that
witness’ testimony.

(c) The persons designated must testify about

information “known or reasonably available to the
organization[,]” i.e., the designee may have a duty
to educate himself or herself about matters beyond
his or her personal knowledge. Notice of a
Rule 30(b)(6) deposition shall contain a statement
to responding party of its obligation to designate a
responding witness.

d. Witness has 30 days to review and correct transcript.

e. Deposition of non-party obtained by use of a subpoena as opposed

to a notice.

(1) Subpoenas are governed by Rule 45.

(2) Subpoena must issue from the court in the district in which
the deposition is going to be taken, but can be signed by an
attorney admitted in the court in which the action is
pending.

(3) No need to obtain a commission that is required to do an

out-of-state deposition in a state court proceeding.

(4) A non-party may not be compelled to testify at trial if he or

she resides more than 100 miles outside the district where
the trial is pending.

4. Depositions on Written Questions – Rule 31

a. Written questions must be served on every other party.

b. Notice must specify:

(1) The identity of the party to answer the questions; and

(2) The identity of the officer before whom the deposition will
be taken.

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 c. Within 14 days of service of the notice, any party can serve a
cross-notice of cross-questions to be asked of the witness.

5. Request for Admissions – Rule 36

a. Party may serve a written request for the admission of any matters
that relate to:

(1) Statements of fact.

(2) Opinions of fact.

(3) Application of law to fact.

(4) Genuineness of documents attached to the Request.

b. A matter is deemed admitted unless, within 30 days after service of

the request, the party to whom the request is submitted responds
with a written answer or objection.

(1) Response must be signed by an attorney.

(2) Shall specifically deny the matter or state, in detail, why the
party cannot truthfully admit or deny the matter.

(3) Party cannot give a lack of information necessary to

respond to the request unless the party states that it has
made a reasonable inquiry and that the information so
obtained is insufficient to allow it to either admit or deny
the matter.

c. Any matter admitted is conclusively established unless the court,

upon motion, permits withdrawal of the admission.

6. Physical or Mental Examination of Persons – Rule 35

a. Examination must be by court order.

b. The order:

(1) Can only be made on a motion for good cause shown and
on notice to the other parties to the action; and

(2) Shall specify the time, place, manner, conditions, and scope
of examination.

c. Examiner’s Report

(1) Party examined has to request a copy of any report.

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 (2) Party requesting report waives any claim of privilege with
respect to any other examination or treatment of the party.

E. Proposed Rule Amendents

a. In August 2013, the Committee on Rules of Practice & Procedure

(“Standing Committee”) of the Judicial Conference of the United
States formally released a package of proposed amendments to the
Federal Rules of Civil Procedure governing the pre-trial discovery
process.

b. The proposed revisions seek:

(1) to implement a requirement that the scope of permissible

discovery be proportional to the litigation at issue,

(2) to pare down the presumptive number of discovery

requests,

(3) to foster more cooperation between the parties and court

involvement in managing litigation, and

(4) to provide additional safeguards for parties against

sanctions for the failure to preserve discoverable
information when the failure was not willful or in bad faith.

c. The proposed amendments can be found at

http://www.uscourts.gov/uscourts/rules/preliminary-draft-
proposed-amendments.pdf.

d. The comment period is open until February 15, 2014.

II. DISCOVERY DISPUTES/MOTION PRACTICE

A. L.R. 7.1(b)(2)

1. As non-dispositive motions, discovery disputes/motion practice will

typically fall within the scope of L.R. 7.1(b)(2).

2. Prior to making any non-dispositive motion, the parties must make a good
faith effort to resolve or reduce all differences relating to the non-
dispositive issue. If, after conferring, the parties are unable to arrive at a
resolution, the party seeking relief must request a court conference with
the assigned magistrate judge. A court conference is a prerequisite to
filing a non-dispositive motion before the assigned magistrate judge.

3. Moving party must file all motion papers and serve them on the other
parties not less than 31 days prior to the return date of the motion.

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 4. The party opposing the motion must file its opposition papers with the
court and serve them on the other parties not less than 17 days prior to the
return date.

5. Reply papers and adjournments are not permitted without the court’s prior
permission.

B. Guidelines on Civility in Litigation

1. The court has adopted the guidelines of civility as outlined in the

New York State Bar Association Guidelines on Civility in Litigation.

2. The Guidelines are available on the court’s website at

www.nynd.uscourts.gov/documents/CivilityinLitigationAVoluntaryComm
itment.pdf.

III. ELECTRONICALLY-STORED INFORMATION

A. What Is It?

1. ESI includes e-mail, web pages, word processing files, audio and video
files, images, computer databases, and virtually anything that is stored on
a computing device – including, but not limited to, servers, desktops,
laptops, cell phones, hard drives, flash drives, PDAs, and MP3 players.

2. Technically, information is “electronic” if it exists in a medium that can

only be read through the use of computers. Such media include cache
memory, magnetic disks (such as computer hard drives or removable disk
drives), optical disks (such as DVDs or CDs), and magnetic tapes.

3. Electronic discovery is often distinguished from “conventional” discovery,

which refers to the discovery of information recorded on paper, film, or
other media, which can be read without the aid of a computer.

B. Rule 26 – 2006 Amendment Notes

1. Amended to parallel Rule 34(a). A party must disclose ESI.

2. Responding party must produce ESI that is relevant, not privileged, and is
reasonably accessible. Must also identify, by category or type, the sources
containing potentially responsive information that it is not searching or
producing.

3. If information is not reasonably accessible, the requesting party may still

obtain discovery by showing good cause, considering the limits in
Rule 26(b)(2)(C) that balance the costs and potential benefits of discovery.

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 4. Appropriate Considerations.

a. Specificity of discovery request;

b. Quantity of information available from other and more easily

accessed sources;

c. Failure to produce relevant information that seems likely to have

existed but is no longer available on more easily accessed sources;

d. Likelihood of finding relevant, responsive information that cannot

be obtained from more easily accessed sources;

e. Predictions as to the importance and usefulness of the further

information;

f. Importance of the issues at stake in litigation; and

g. Parties’ resources.

5. Rule 26(f). Directs parties to discuss discovery of ESI and any issues
regarding preservation of discoverable information during the discovery-
planning conference.

6. Rule 33 – 2006 Amendment

a. Rule 33(d) allows the responding party to substitute access to

documents or ESI for an answer only if the burden of deriving the
answer will be substantially the same for either party.

7. Rule 34 – 2006 Amendment

a. Amended to confirm that discovery of electronic documents stands

on equal footing with discovery of paper documents.

b. Applies to information that is fixed in a tangible form and to

information that is stored in a medium form which can be retrieved
and examined.

c. Rule 34(b) permits a requesting party to designate the form or

forms in which it wants ESI produced. Unless the parties stipulate
or the court orders otherwise, the responding party must produce
ESI either in a form or forms in which it is ordinarily maintained
or in a form or forms that are reasonably usable (does not mean it
has to be in the form originally maintained).

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 8. Rule 37(e)

a. The ordinary operation of computer systems creates a risk that a

party may lose potentially discoverable information without
culpable conduct on its part. Absent exceptional circumstances, a
court may not impose sanctions under these Rules on a party for
failing to provide ESI lost as a result of routine, good faith
operation of an electronic information system.

b. Routine operation includes alteration and overwriting of

information, often without the operator’s specific direction or
awareness.

c. Good faith means party is not permitted to exploit the routine

operation of an information system to thwart discovery obligations
by allowing that operation to continue in order to destroy specific
stored information that it is required to preserve.

d. Litigation Hold. When a party is under a duty to preserve

information because of pending or reasonably anticipated
litigation, intervention in the routine operation of an information
system is one aspect of litigation hold.

e. These rules do not affect other sources of authority to impose

sanctions or rules of professional responsibility.

9. Rule 45

a. ESI can be sought by subpoena.

b. Parties can designate form or forms for production of ESI. If the

form is not specified, ESI can be provided in the form or forms in
which it is usually maintained or that are reasonably usable.

c. Rule 45(c) protects against undue impositions on non-parties.

d. Rule 45(d)(1)(D). The responding party need not provide

discovery of ESI from sources the party identifies as not
reasonably accessible, unless court orders discovery for good
cause, considering limitations of Rule 26(b)(2)(C) on terms that
protect non-party against significant expense.

C. E-Discovery Model Order

1. The Federal Circuit Advisory Council has drafted and adopted a model
order governing e-discovery. The stated purpose of their efforts is “to aid
trial courts in the exercise of their discretion in crafting order tailored to
the facts and circumstances of each case.”

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 2. The Model Order is available at www.cafc.uscourts.gov/
images/stories/announcements/Ediscovery_Model_Order.pdf.

3. In addition, some District Courts, such as those in Delaware, Kansas, and

Maryland, have adopted e-discovery local rules.

D. E-Discovery Best Practices

1. Attorney-Client Communication. Attorneys and clients should work

together as early as possible to ensure that both understand how and where
electronic documents, records, and e-mails are maintained and to
determine how best to locate, preserve, review, and produce responsive
documents. Counsel should become familiar with the client’s information
retention policies and data storage capabilities, including computer
systems, programs, and capabilities. A party contemplating a lawsuit
should begin this process well before a complaint is filed.

2. Written Litigation Hold and Compliance. A party must properly identify

the trigger date (which may arise long before litigation counsel is retained)
and promptly issue a well-crafted and thorough written litigation hold.
Counsel should make sure that all appropriate individuals have received
the litigation hold letters and comply with those letters, and should also
issue periodic reminders.

3. Preservation and Collection of Evidence. Counsel should be involved

very early in the preservation effort to ensure that all steps are taken to
preserve evidence and locate custodians. Relying on individual employees
to determine what documents should be preserved or which documents are
relevant to a lawsuit is not sufficient and can lead to inadequate discovery
efforts and result in sanctions. In addition, it is important that preservation
and collection efforts relate not only to office computers and work e-mail
accounts, but other sources of electronic information as well, including
personal computers, smartphones, iPods, etc. Ultimately, attorneys are
obligated to ensure all relevant documents are discovered, retained, and
produced from all custodians who possess discoverable information.

4. Internal Discovery Planning. Attorneys should consult with appropriate

IT personnel and educate themselves about the technology and tools
available to streamline the e-discovery process. If large scale ESI
discovery is anticipated, consider creating a “data map” of the company’s
information systems and related policies to aid in managing discovery.
Counsel should, at this point, be familiar with where and how electronic
data (including e-mail) is stored, how often and to what location ESI is
backed up, what type of information is contained in each electronic
database or repository, and what records have been maintained for
litigation.

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 5. Production Format. If a party intends to seek production of metadata,
embedded data, or native file format, counsel should make this known
promptly at the Rule 26(f) conference so as to allow the producing party to
attempt to accommodate the request or raise an appropriate objection.
Alternatively, the parties should attempt to reach an early agreement as to
file format and form of production with respect to ESI. If possible, avoid
the unnecessary and wasteful conversion of data to formats that cannot be
readily searched or sorted.

6. Identifying Responsive Materials. Counsel should take supervisory

responsibility for making certain that necessary discovery is conducted,
and should assume the lead role in clearly defining discovery
responsibilities in connection with the internal discovery process; conflicts
or misunderstandings between outside counsel and clients in responding to
discovery can lead to severe consequences.

7. Preparing a Production Set. Litigation counsel have an obligation to

supervise the production and share responsibility for compliance with
discovery obligations. Counsel should carefully review responsive
materials for privilege; even if the parties have entered into a “quick-peek”
or “claw-back” agreement concerning inadvertent production, disclosure
may in certain circumstances result in a waiver of protection.

8. Following Up. In the event that contradictory or potentially contradictory

evidence appears, or if gaps in responsive materials are observed, counsel
should pursue adequate follow up to ensure that all responsive materials
have been identified. If unproduced responsive evidence is identified,
counsel should “redouble” efforts to find further documents.

IV. LITIGATION HOLD LETTERS

A. Introduction

The Federal Rules and many regulatory bodies have long required that parties and
their employees in possession of relevant evidence in any form take all measures
necessary to preserve that evidence. The Sedona Principles have confirmed that
“[t]he obligation to preserve electronic data and documents requires reasonable
and good faith efforts to retain information that may be relevant to pending or
threatened litigation.” THE SEDONA PRINCIPLES, Principle 5.

The principal device used to preserve electronic evidence (in reality, any
evidence) is a litigation hold letter. Verbal directives to preserve possibly
relevant information are insufficient to satisfy an attorney’s obligation to the
make sure relevant information is preserved. An attorney, whether an in-house
counsel or outside counsel, must prepare and send a written directive to any
person who may have relevant information in order to preserve any such
information. It is important that such litigation hold letters are sent as soon as

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 counsel has knowledge that a dispute may arise. Waiting until actual litigation
has been commenced is often too late. See Zubulake v. UBS Warburg LLC,
220 F.R.D. 212, 216-217 (S.D.N.Y. 2003) (“The obligation to preserve evidence
arises when the party has notice that the evidence is relevant to litigation or when
a party should have known that the evidence may be relevant to future
litigation.”).

B. Essential Elements of a Litigation Hold Letter

An effective litigation hold letter must adequately define the information that
needs to be retained based on what counsel knows about the dispute, including the
relevant timeframe of the evidence that needs to be preserved, the identity of
people who may be involved in the dispute, and to the extent possible, the subject
matter of the dispute. In addition, the litigation hold letter should be sent not only
to the principal players in the dispute, but also persons associated with those
players, such as assistants and secretaries, who may have some involvement in the
dispute, albeit indirect.

In addition to a litigation hold letter, a company should have an established

litigation hold policy for its IT department. Such a policy will automatically
suspend routine destruction of any files that may contain relevant information as
well as routine destruction or overwriting of back-up media for the relevant time
period. The person in charge of a company’s IT department must be familiar with
the litigation hold policy and be able to implement that policy effectively.

Finally, an attorney not only has an obligation to issue litigation hold letters and
implement the client’s litigation hold policy, but also must make sure that
individuals have received the litigation hold letters and are complying with those
letters. Counsel must also issue periodic written reminders that the litigation hold
remains in effect. It is insufficient merely to send out a litigation hold letter and
not to follow up on that letter.

A sample litigation hold letter/notice accompanies these materials as Appendix B.

V. INADVERTENT DISCLOSURE

A. Waiver

1. Whether inadvertent disclosure results in a waiver of the attorney-client

privilege depends on the circuit court and the particular facts of the case.
Some courts favor automatic waiver of the claim for each inadvertent
disclosure; other courts uphold the privilege in all cases; and other courts
reach a middle ground.

2. The better/majority approach relies on a case-by-case analysis of the

particular facts, including the degree of attention and care spent by the
attorney and client in safeguarding the confidence of the communication.

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 (See infra, Section B “Scope of Waiver”); 7 MOORE’S FEDERAL PRACTICE
¶ 37A.32[5][a].

B. Practical Considerations

1. The number of documents stored electronically can be extensive, thus

increasing the likelihood that privileged or protected documents will be
mistakenly produced.

2. The cost to carefully review electronically-stored information for

privileged material can be prohibitive.

3. The extent of a party’s efforts to prevent inadvertent disclosure may

determine whether privilege/protection has been waived.

4. In most jurisdictions, inadvertent disclosure includes sending or storing a

communication in ways that are likely to be intercepted by a third party.

5. A party’s failure to take reasonable precautions to protect a

communication from disclosure may suggest that the communication was
never intended to be confidential or protected under general waiver-of-
privilege or protection principles.

C. Determining Whether Waiver Has Occurred

1. While state jurisdictions have varying common law doctrines on

inadvertent waiver, the federal courts generally use one of three
approaches:

a. Strict Waiver Approach. Under this view, unintentional or even

innocent disclosure of a client’s confidential information results in
an automatic waiver of privilege. Anthony F. Bruno, Preserving
Attorney-Client Privilege in the Age of Electronic Discovery,
54 N.Y.L. SCH. L. REV. 541, 547 (2009). The rationale is that,
once disclosure has occurred, any attempt to “undisclose” will
never achieve the benefits of the privilege. Jason P. Kathman,
Constructive Strict-Approach to Attorney-Client Privilege in
Bankruptcy: Lack of Clarity in Rule 502 Makes Its Application to
Bankruptcy Unclear, 15 Tex. Wesleyan L. Rev. 61, 64 (2008).

b. Subjective-Intent Approach. This approach is more lenient, and

holds that the privilege cannot be waived unless the client
expressly and voluntarily waives it (Bruno, 54 N.Y.L. SCH. L. REV.
at 547), or when the inadvertent disclosure was a result of the
client’s or attorney’s gross negligence (Kathman, 15 Tex.
Wesleyan L. Rev. at 64).

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 c. The Majority Approach. Applies a balancing test that takes into
consideration:

(1) The reasonableness of the precautions taken by the

producing party to prevent inadvertent disclosure of
privileged documents;

(2) The volume of discovery versus the extent of the specific

disclosure issue;

(3) The length of time taken by the producing party to rectify

the disclosure; and

(4) The overarching issue of fairness.

Bruno, 54 N.Y.L. SCH. L. REV. at 547.

d. Courts in the Second Circuit follow the majority approach: See

Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325,
339 (N.D.N.Y. 2006); Gragg v. International Mgmt. Group,
Civ. 5:03-CV-0904, 2007 WL 1074894, at *5 (N.D.N.Y. Apr. 5,
2007); Atronic Int’l, GMBH v. SAI Semispecialists of Am., Inc.,
232 F.R.D. 160, 163-164 (E.D.N.Y. 2005); United States v. Rigas,
281 F. Supp. 2d 733, 738 (S.D.N.Y. 2003).

2. Interplay with Federal Rule of Evidence 502

a. In 2008, Fed. R. Evid. 502 was enacted and provides that the
inadvertent production of privileged and/or protected information
in federal or state proceedings does not operate as a waiver of the
attorney-client privilege in a federal proceeding if the holder of the
privilege took reasonable steps to prevent disclosure; after learning
of the inadvertent disclosure, took reasonable steps to rectify his
error; and, if the inadvertent disclosure occurred in a state
proceeding, the disclosure did not constitute a waiver under state
law. Fed. R. Evid. 502(b), (c).

b. Fed. R. Evid. 502(b) mirrors the majority approach to inadvertent

disclosures by considering whether the disclosure truly was
inadvertent, the steps that the producing party took to avoid
disclosure and the actions taken to correct the issue. Fed. R.
Evid. 502.

c. The Advisory Committee Note states that the rationale behind

Fed. R. Evid. 502 was to “provide a predictable, uniform set of
standards under which parties can determine the consequences of a
disclosure of communication or information covered by the

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 attorney-client privilege or work-product protection.” Fed. R.
Evid. 502(b) Advisory Committee Notes.

d. Congress intended to provide uniformity and predictability by

(1) rejecting the strict and lenient approaches to waiver and
moving towards a middle approach; (2) explicitly stating that a
confidentiality order entered by a court in a federal proceeding is
enforceable against subsequent third parties in federal or state
proceedings; and (3) clarifying that any agreement governing the
effect of inadvertent disclosure is only binding on parties to the
agreement unless the agreement is incorporated in to a court order.
Elizabeth King, Waving Goodbye to Waiver? Not So Fast:
Inadvertent Disclosure, Waiver of the Attorney-Client Privilege,
and Federal Rule of Evidence 502, 32 Campbell L. Rev. 467
(2010).

e. A survey of U.S. District Court cases post-Fed. R. Evid. 502

enactment seems to show that courts applying Fed. R. Evid. 502(b)
to inadvertent disclosure of privileged information fall into one of
two categories:

(1) courts merely cite to Rule 502, but then instead analyze the
issue under the prevailing common-law middle approach in
their jurisdiction. See Clarke v. J.P. Morgan Chase & Co.,
08-CIV-02400, 2009 WL 970940 (S.D.N.Y. Apr. 10,
2009); or

(2) courts use the elements of Fed. R. Evid. 502(b) as a starting

point, applying Fed. R. Evid. 502’s approach to the facts
and then supplementing their analysis with other common-
law middle approach factors, which may or may not reflect
Congress’ intent. Rhoads Indus., Inc. v. Building Materials
Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008); King,
32 Campbell L. Rev. 467 (2010).

Clarke, 2009 WL 970940. An assistant general counsel of

defendant drafted an e-mail to the IT department advising that
a certain IT position should be reclassified from exempt to
nonexempt with regard to overtime eligibility under the Fair
Labor Standards Act. Defendant inadvertently produced to
plaintiff a copy of the e-mail message. Defendant subsequently
made an application to the court seeking an order compelling
plaintiff to return and destroy the e-mail production. The court
cited to Fed. R. Evid. 502, but then analyzed the inadvertent
disclosure under a common law middle approach analysis and
found that defendant waived its privilege because defendant
(1) took no steps to prevent the dissemination; (2) took a long

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 time before demanding return or destruction of the information
disclosed; (3) could have easily culled privilege information
from the relatively low volume of information produced; and
(4) had more than enough time to discover and assert its
privilege, but waited until the day before the deposition to raise
it.1

Rhoads, 254 F.R.D. 216. Plaintiff inadvertently produced to

defendant over 800 electronic documents that contained
privileged information. Plaintiff did not take reasonable
precautions to prevent inadvertent disclosure (e.g., plaintiff did
not use enough search terms to identify privileged documents;
improperly searched e-mail addresses instead of e-mail body;
did not conduct quality assurance testing of the search). The
court stated that despite plaintiff’s inadequate steps to prevent
disclosure, the “loss of the attorney-client privilege in a high-
stakes, hard-fought litigation is a severe sanction and can lead
to serious prejudice,” and found against waiver. Rhoads,
254 F.R.D. at 227, order clarified, 254 F.R.D. 238 (E.D. Pa.
2008). In addition to applying the factors provided by Fed. R.
Evid. 502(b), the court also analyzed the facts of the case under
a common-law middle approach.2

United States v. Sensient Colors, Inc., Civ. No. 07-1275,

2009 WL 2905474 (D.N.J. Sept. 9, 2009). Plaintiff produced
approximately 45,000 documents to defendant over six days.
Plaintiff identified 214 documents that were inadvertently
produced and argued that the joint discovery plan it negotiated
with defendant precluded a privilege waiver. The court in its
analysis stated that plaintiff has the burden to prove the
elements of Fed. R. Evid. 502(b), but then applied a common-
law middle approach,3 which the court believed to be

1
The Clarke court considered the following common law factors: “(1) the reasonableness of the precautions to
prevent inadvertent disclosure, (2) the time taken to rectify the error, (3) the extent of the disclosure, and (4) an
over[arching] issue of fairness and the protection of an appropriate privilege which . . . must be judged against the
care or negligence with which the privilege is guarded.” Clarke, 2009 WL 970940, at *5 (citing Business
Integration Serv., Inc. v. AT&T Corp., 251 F.R.D. 121, 129 (S.D.N.Y. 2008)).
2
In Rhoads, in addition to analyzing waiver under the elements of Fed. R. Evid. 502(b), the court applied the facts
of the case to the following five-factor test found in Fidelity & Deposit Co. of Md. v. McCulloch, 168 F.R.D. 516
(E.D. Pa. 1996): “(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the
extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure;
(4) any delay and measures taken to rectify the disclosure; [and] (5) whether the overriding interests of justice would
or would not be served by relieving the party of its errors.” Rhoads, 254 F.R.D. at 219.
3
In Sensient, the court applied a five-factor analysis found in Ciba-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404,
411 (D.N.J. 1995). Under the Ciba-Geigy Corp. test, “at least five factors are analyzed to determine if a waiver
occurred: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the document
production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) any delay and measures

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 “essentially the same” as Fed. R. Evid. 502(b). The court held
that plaintiff satisfied its burden regarding some documents,
but waived its privilege as to other documents because plaintiff
did not reasonably and diligently act to correct its error.

D. Scope of Waiver

1. The consequences of inadvertent disclosure vary among jurisdictions.

a. Some courts have held that the waiver only applies to the disclosed
information. Parkway Gallery Furniture, Inc. v. Kittinger/
Pennsylvania House Group, Inc., 116 F.R.D. 46, 52 (M.D.N.C.
1987).

b. Other courts have held that inadvertent waiver results in the waiver
of all information relating to the subject-matter disclosed. In re
Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

c. While other courts base their decision on the fairness to the parties
involved. United States v. Doe, 219 F.3d 175, 185 (2d Cir. 2000);
see also Kathman, 15 TEX. WESLEYAN L. REV. at 74-75.

2. Second Circuit. In United States v. Doe (In re Grand Jury Proceeding),

219 F.3d 175, 185 (2d Cir. 2000), the court considered “whether a
corporate officer can impliedly waive the corporation’s attorney-client and
work-product privileges in his grand jury testimony, even though the
corporation has explicitly refused such a waiver.” Id. at 179. The court
held that “implied waiver analysis should be guided primarily by fairness
principles,” which arise when a party uses the privilege as both a “shield
and sword.” Id. at 182, 185. The court noted that “whether fairness
requires disclosure has been decided by the courts on a case-by-case basis,
and depends primarily on the specific context in which the privilege is
asserted.” Id. at 183. Other fairness considerations include whether there
is a prejudicial effect on the other party to the litigation; the stage of the
proceedings at which the disclosure occurred; and whether the individual
had the authority to assert and waive the privilege (i.e., in context of a
corporation and officers). Id. at 183-184.

E. Retrieval of Inadvertently Disclosed Information

1. In 2006, Fed R. Civ. P. 26 was amended to provide a mechanism for

retrieval of privileged and protected information that had been
inadvertently disclosed.4 The Advisory Committee’s comments to Fed. R.

taken to rectify the disclosure, and (5) whether the overriding interests of justice would or would not be served by
relieving the party of its error.” Sensient, 2009 WL 2905474, at *3 (citing Ciba-Geigy Corp., 916 F. Supp. at 411).
4
See footnote 1.

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 Civ. P. 26(b)(5)(B) state that the rule does not govern whether the
inadvertent production constitutes waiver, noting that “courts have
developed principles to determine whether, and under what circumstances,
waiver results from inadvertent production of privileged or protected
information.”5 Fed. R. Civ. P. 26 was not intended to supplant those
decisions. Instead, Rule 26(b)(5)(B) offers a notification and retrieval
procedure in case of inadvertent disclosure. Fed R. Civ. P. 26 Advisory
Committee’s Comment.

a. Claw-Back. A request for inadvertently disclosed information

should normally be made in writing or orally, if the request will be
officially, stenographically, or electronically recorded, at a
deposition for example.

b. Request should include enough information to allow the opposing

party and court to evaluate whether the information is properly
subject to a privilege and whether that privilege has been waived.

F. Preventing Inadvertent Disclosure

1. Non-Waiver Agreements. Courts are encouraging attorneys to enter into

non-waiver agreements. The 2006 Amendments to Fed. R. Civ. P. 16 and
26 have encouraged the use of “non-waiver agreements” to facilitate
discovery. In these agreements, attorneys agree not to assert waiver of
privilege or work-product protection if the opposing party agrees to
expedite electronic information production without first doing a “full
fledged privilege review.” Kathman, 15 TEX. WESLEYAN L. REV. at 75.

a. Consider entering into a consensual confidentiality agreement.

This can protect all parties to the agreement from waiver in the
event of inadvertent disclosure of privileged or protected
information while expediting discovery. Without such an
agreement, discovery will be delayed by time consuming privilege
review.

b. A consensual confidentiality agreement is particularly important

when a “mirror image” of a computer’s hard drive may be
produced. A mirror image contains a copy of all the information
on a computer’s hard drive, including embedded data and deleted
files.6 A mirror image exposes more matter that may be subject to

5
The Advisory Committee’s comments are from the 2006 Amendments to Fed. R. Civ. P. 26(b)(5), prior to the
2008 enactment of Fed. R. Evid. 502.
6
Typically used in computer forensic investigations and/or electronic discovery investigations, the term “mirror
imaging” refers to the examination of a bit-by-bit copy of a computer hard drive to ensure that the computer’s
operating system has not been altered during the forensic examination. AmDoc Glossary of Terms. Retrieved
May 29, 2011, from website: http://www.expertglossary.com/ediscovery/definition/mirror-image (last visited on
March 22, 2013).

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 attorney-client, work-product, trademark, or other commercial
privileges than would a “hard copy” of the same documents.
7 MOORE’S FEDERAL PRACTICE ¶ 37A.32[5][d][iii].

2. Types of Non-Waiver Agreements.

a. “Quick-Peek Agreement.” The responding party provides the

requested materials without a thorough review for privilege or
protection, but with the explicit understanding that production does
not waive privilege or protection.

b. “Claw-Back Agreement.” The responding party reviews the

materials requested for privilege or protection before they are
produced, but the parties agree in advance that if privileged or
protected information is inadvertently disclosed, the receiving
party will return it within a reasonable time.

c. The distinction between application of these non-waiver

agreements is that under a “Claw-Back Agreement” the producing
party performs a complete review, and if some information was
inadvertently disclosed, even after thorough review, the “Claw-
Back” acts as a catch-all protection for the producing party;
whereas, in a “Quick-Peek Agreement,” the producing party
briefly reviews the information and produces it to the recipient,
and the requesting party reviews the documents and requests
copies of specific pages. Only then does the producing party
thoroughly screen the requested documents for formal production
and privilege assertion. See Kathman, 15 TEX. WESLEYAN L. REV.
at 76.

3. Who Is Bound by Non-Waiver Agreements?

a. Third Parties. A confidentiality agreement preventing disclosure

of electronically-stored information can be extended to third
parties in litigation. For example, a technician assigned by a party
to be present during electronic production may be made a party to
the confidentiality agreement so that he too would be forbidden
from revealing any privileged/protected documents retained by the
responding party. In this situation, any disclosure of privilege and
protected information by the third party would not constitute a
waiver. 7 MOORE’S FEDERAL PRACTICE ¶ 37A.32[5][d][ii].

VI. ASSERTING PRIVILEGE

A. Burden is on the party who asserts a privilege. Rule 26(b)(5)(A) provides a

procedure for properly withholding information that is subject to privilege. A

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 claim of privilege must be “expressly made” when responding to discovery
requests. Fed. R. Civ. P. 26(b)(5)(A)(i).

B. A privilege log, consistent with the Rules, should describe:

1. Nature of the document, communication, or tangible thing not produced or

disclosed.

2. This description must be done in such a way as to enable the opposing

party or parties to assess the claim without revealing the information itself.

C. Dispute Prevention

1. Have an initial discovery order that incorporates the parties’ consent to a

reasonable procedure for disseminating information and preserving claims
for litigation. Fed. R. Civ. P. 16, 26(f)(3)(d).

2. Good faith attempt at resolving the issue.

D. If all else fails:

1. Request a court conference to discuss the issues. Local Rules NDNY.

The conference may solve the problem.

2. If the conference does not solve the problem without motion practice,
motions to compel or motion for a protective order may be filed,
depending on the party making the motion. Fed. R. Civ. P. 37(a)(1)-2).

3. The court may have to review disputed documents under seal to resolve
the dispute. Fed. R. Civ. P. 26(b)(5)(B).

E. In Alleyne v. New York State Educ. Dep’t, 248 F.R.D. 383, 386 (N.D.N.Y. 2008),
Chief Judge Sharpe stated the task of conducting the in camera review will be
“nearly impossible” without a detailed privilege log, and “if necessary,
evidentiary submissions that fill in factual gaps.” He outlined the content of a
privilege log that will assist the court in conducting an in camera review:

1. the document under consideration,

2. the maker of the document,

3. the intended recipient,

4. each individual who received a copy,

5. the date of the document,

6. the purpose for which it was prepared,

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 7. the nature of the asserted privilege, and

8. sufficient facts to test the assertion of privilege.

Id. Chief Judge Sharpe noted that the necessary detail would depend on the
privilege asserted and its discrete elements. Id.

VII. STATE LAW PRIVILEGES

A. Fed. R. Evid. 501

1. Common Law (Federal). Generally, unless the U.S. Constitution, a

federal statute, or rules prescribed by the Supreme Court state otherwise.

2. In a civil case, where state law supplies the rule of decision, state law
governs.

3. In a case that involves federal and state law claims, federal privilege law
controls. Alleyne, 248 F.R.D. at 385 (citing Ehrich v. Binghamton City
Sch. Dist., 210 F.R.D. 17, 21 (N.D.N.Y. 2002).

B. Often, even where federal law controls, parties will attempt to assert state law
statutory privileges, particularly in cases of law enforcement personnel records.
Party asserting privilege will assert the privilege under N.Y. Civil Rights Law
§ 50-1 and N.Y. Public Officers Law § 96.

In Smith v. Goord, 222 F.R.D. 238 (N.D.N.Y. 2004), Magistrate Judge Peebles
discussed the interplay between the assertion of this state law privilege with the
court’s review. State law statutory provisions are not directly applicable. These
rules may be invoked, but the court balances the importance of the privacy
interests with the necessity for plaintiff to obtain information relevant to his or her
claims. Defendants often assert the privilege and ask the court to conduct an in
camera review, akin to that contemplated in the state statute.

Routine in camera review is not favored. It would be an undue burden on the

court, and the parties are in the best position to determine the privacy interests and
the strategy involved in the case. Personnel records contain potentially relevant
information. Often a protective order will suffice, together with redactions of
strictly personal information such as social security numbers, home addresses, or
names of family members.

Magistrate Judge Baxter has developed Guidelines for Discovery of Personnel

Files in Civil Rights Cases, based in part on Magistrate Judge Peebles’ decision.
These apply when a plaintiff is represented by counsel. Different considerations
apply when there is a pro se involved. The following are generally discoverable.
This will depend upon the relevance of the following to plaintiff’s claim.

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 1. Records relating to criminal histories, prior discipline, or other complaints
of misconduct, regardless of the outcome.

2. Records of education and training.

3. Performance reviews.

4. Information considered in connection with hiring to the extent it reflects

on credibility or puts the employer on notice of a propensity for the
relevant misconduct.

5. Records that the defendant intends to use at trial.

6. If there are still documents about which defendant is uncertain, the court
can then engage in a limited in camera review.

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 Appendix A

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 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
____________________________________

Civ. Action No.

Plaintiff,

v.

Defendant.
____________________________________

CONFIDENTIALITY ORDER

The Court enters the following protective order pursuant to Federal Rule of Civil

Procedure 26(c)(1).

1. Findings: The Court finds that the parties to this case may request or

produce information involving trade secrets or confidential research and development or

commercial information, the disclosure of which is likely to cause harm to the party

producing such information.

2. Definitions:

a) “Party” means a named party in this case. “Person” means an

individual or an entity. “Producer” means a person who produces information via the

discovery process in this case. “Recipient” means a person who receives information

via the discovery process in this case.

b) “Confidential” information is information concerning a person’s

business operations, processes, and technical and development information within the

scope of Rule 26(c)(1)(G), the disclosure of which is likely to harm that person’s

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competitive position, or the disclosure of which would contravene an obligation of

confidentiality to a third person or to a Court.

c) “Highly Confidential”, or its equivalent, “Attorney’s Eyes Only”

information is information within the scope of Rule 26(c)(1)(G) that represents current or

future business or technical trade secrets and plans that are more sensitive or strategic

than Confidential information, the disclosure of which is likely to significantly harm that

person’s competitive position, or the disclosure of which would contravene an obligation

of confidentiality to a third person or to a Court.

d) Information is not Confidential or Highly Confidential if it is

disclosed in a printed publication, is known to the public, was known to the recipient

without obligation of confidentiality before the producer disclosed it, or is or becomes

known to the recipient by means not constituting a breach of this Order. Information is

likewise not Confidential or Highly Confidential if a person lawfully obtained it

independently of this litigation.

3. Designation of information as Confidential or Highly Confidential:

a) A person’s designation of information as Confidential or Highly

Confidential means that the person believes in good faith, upon reasonable inquiry, that

the information qualifies as such.

b) A person designates information in a document or thing as

Confidential or Highly Confidential by clearly and prominently marking it on its face as

“CONFIDENTIAL” or either “HIGHLY CONFIDENTIAL” or ATTORNEY’S EYES ONLY”.

By making documents or things containing Confidential or Highly Confidential

information available for inspection and copying without marking them as confidential, a

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producing party does not forfeit a claim of confidentiality, so long as the producer

causes copies of the documents or things to be marked as Confidential or Highly

Confidential before providing them to the recipient.

c) A person designates information in deposition testimony as

Confidential or Highly Confidential by stating on the record at the deposition that the

information is Confidential or Highly Confidential or by advising the opposing party and

the stenographer and videographer in writing, within fourteen days after receipt of the

deposition transcript, that the information is Confidential or Highly Confidential.

d) A person’s failure to designate a document, thing, or testimony as

Confidential or Highly Confidential does not constitute forfeiture of a claim of

confidentiality as to any other document, thing, or testimony.

e) A person who has designated information as Confidential or Highly

Confidential may withdraw the designation by written notification to all parties in the

case.

f) If a party disputes a producer’s designation of information as

Confidential or Highly Confidential, the party shall notify the producer in writing of the

basis for the dispute, identifying the specific document[s] or thing[s] as to which the

designation is disputed and proposing a new designation for such materials. The party

and the producer shall then meet and confer to attempt to resolve the dispute without

involvement of the Court. If they cannot resolve the dispute, the proposed new

designation shall be applied fourteen (14) days after notice of the dispute unless within

that fourteen day period the producer files a motion with the Court to maintain the

producer’s designation. The producer bears the burden of proving that the information is

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properly designated as Confidential or Highly Confidential. In the event such an

application is made, the information shall remain subject to the producer’s Confidential

or Highly Confidential designation until the Court rules on the dispute. A party’s failure to

contest a designation of information as Confidential or Highly Confidential is not an

admission that the information was properly designated as such.

4. Use and disclosure of Confidential or Highly Confidential Information:

a) Confidential and Highly Confidential information may be used

exclusively for purposes of this litigation, subject to the restrictions of this Order.

b) Absent written permission from the producer or further order by the

Court, the recipient may not disclose Confidential information to any person other than

the following: (i) a party’s outside counsel of record, including necessary paralegal,

secretarial and clerical personnel assisting such counsel; (ii) a party’s in-house counsel,

including paralegal, secretarial and clerical personnel assisting such counsel; (iii) a

party’s officers and employees directly involved in this case whose access to the

information is reasonably required to supervise, manage, or participate in this case; (iv)

a stenographer and videographer recording testimony concerning the information; (v)

subject to the provisions of paragraph 4(d) of this order, experts and consultants and

their staff whom a party employs for purposes of this litigation only; and (vi) the Court

and personnel assisting the Court, including court-appointed mediators and their staffs.

c) Absent written permission from the producer or further order by the

Court, the recipient may not disclose Highly Confidential information to any person other

than those identified in paragraph 4(b)(i), (iv), (v), and (vi).

d) A party may not disclose Confidential or Highly Confidential

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information to an expert or consultant pursuant to paragraph 4(b) or 4(c) of this order

until after the expert or consultant has signed an undertaking in the form of Appendix 1

to this Order. The party obtaining the undertaking must serve it on all other parties

within fourteen days after its execution. At least fourteen days before the first disclosure

of Confidential or Highly Confidential information to an expert or consultant (or member

of their staff), the party proposing to make the disclosure must serve the producer with a

written identification of the expert or consultant and a copy of his or her curriculum vitae.

If the producer has good cause to object to the disclosure (which does not include

challenging the qualifications of the expert or consultant), it must serve the party

proposing to make the disclosure with a written objection within fourteen days after

service of the identification. Unless the parties resolve the dispute within fourteen days

after service of the objection, the producer must move the Court promptly for a ruling,

and the Confidential or Highly Confidential information may not be disclosed to the

expert or consultant without the Court’s approval.

e) Notwithstanding paragraph 4(a) and (b), a party may disclose

Confidential or Highly Confidential information to: (i) any employee or author of the

producer; (ii) any person, no longer affiliated with the producer, who authored the

information in whole or in part; and (iii) any person who received the information before

this case was filed.

f) A party who wishes to disclose Confidential or Highly Confidential

information to a person not authorized under paragraph 4(b) or 4(c) must first make a

reasonable attempt to obtain the producer’s permission. If the party is unable to obtain

permission, it may move the Court to obtain permission.

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 5. Copies: A party producing documents as part of discovery must, upon

request, furnish the requesting party with one copy of the documents it requests, at the

requesting party’s expense. Before copying, the parties must agree upon the rate at

which the requesting party will be charged for copying.

6. Inadvertent Disclosure: Inadvertent disclosures of material protected by

the attorney-client privilege or the work product doctrine shall be handled in accordance

with Federal Rule of Evidence 502.

7. Filing with the Court:

a) This protective order does not, by itself, authorize the filing of any

document under seal. Notwithstanding any other provision of this Order, documents

and things may not be filed under seal with the Clerk of this Court unless such sealing

is authorized by a separate order upon an express finding that the documents or things,

or portions thereof to be sealed, satisfy the requirements for sealing under Lugosch v.

Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006).

b) If a party wishes to file in the public record a document that another

producer has designated as Confidential or Highly Confidential, the party must advise

the producer of the document no later than five business days before the document is

due to be filed, so that the producer may move the Court to require the document to be

filed under seal.

8. Document Disposal: Promptly upon the conclusion of this case, each

party must return to the producer all documents and copies of documents containing the

producer’s Confidential or Highly Confidential information, and must destroy all notes,

memoranda, or other materials derived from or in any way revealing Confidential or

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Highly Confidential information. Alternatively, if the producer agrees, the party may

destroy all documents and copies of documents containing the producer’s Confidential

or Highly Confidential information. The party returning and/or destroying the producer’s

Confidential and Highly Confidential information must promptly certify in writing its

compliance with the requirements of this paragraph. Notwithstanding the requirements

of this paragraph, a party and its counsel may retain one complete set of all documents

filed with the Court, remaining subject to all requirements of this order.

9. Originals: A legible photocopy of a document may be used as the

“original” for all purposes in this action. The actual “original,” in whatever form the

producing party has it, must be made available to any other party within fourteen days

after a written request.

10. Survival of Obligations: This Order’s obligations regarding Confidential

and Highly Confidential information survive the conclusion of this case.

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 APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

____________________________________

Plaintiff[s],

vs. Case No. ________

____________________________________

Defendant[s].

[insert name]

I, [insert person’s name], state the following under penalties of perjury as

provided by law:

I have been retained by [insert party’s name] as an expert or consultant in

connection with this case. I will be receiving Confidential [and Highly Confidential]

information that is covered by the Court’s protective order dated [fill in date]. I have

read the Court’s protective order and understand that the Confidential [and Highly

Confidential] information is provided pursuant to the terms and conditions in that order.

I agree to be bound by the Court’s protective order. I agree to use the

Confidential [and Highly Confidential] information solely for purposes of this case. I

understand that neither the Confidential [and Highly Confidential] information nor any

notes concerning that information may be disclosed to anyone that is not bound by the

Court’s protective order. I agree to return the Confidential [and Highly Confidential]

information and any notes concerning that information to the attorney for [insert name of

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retaining party] or to destroy the information and any notes at that attorney’s request.

I submit to the jurisdiction of the Court that issued the protective order for

purposes of enforcing that order. I give up any objections I might have to that Court’s

jurisdiction over me or to the propriety of venue in that Court.

___________________________________
[signature]

Subscribed and sworn to

before me this ____ day
of _________, 20___.

____________________
Notary Public

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 Appendix B

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 [letterhead]
PRIVILEGED AND CONFIDENTIAL/
ATTORNEY CLIENT COMMUNICATION

[Name]
[Title]
[Company]
[Address]
[City, State, Zip]

Re: [ ]

Dear [Name]:

As you know, [ ] has been retained to [describe purpose of

engagement, including specifically whether the firm is prosecuting or defending an action
or proceeding, conducting an investigation or simply providing advice and counsel
regarding a potential action or proceeding.] I am sending this Litigation Hold Notice to you
in your role as [Title] of [Company name], in order for you to take the appropriate steps to
preserve, identify and maintain all hard-copy and electronically stored documents, records, and
data, including e-mail and voice wave files, or information relating to this matter.

1. Retention/Collection of Documents

Enclosed is a document entitled “Notice of Document and Data Retention.” Please notify
me if there any other employees whom you believe may have hard-copy and/or electronically
stored documents and data (including email) involving the issues identified in the document as
the steps to be undertaken apply equally to employees of an entity as well as the entity itself.

It is critically important that all potentially relevant documents be maintained. A failure

to follow these instructions could result in sanctions being issued by the Court that could
seriously jeopardize our ability to [prosecute or defend the action or proceeding--tailor to
facts of engagement]. In addition, a court may impose monetary and other sanctions including
the dismissal of claims and defenses.

Furthermore, because electronically stored information is easily deleted, modified, or

corrupted, all routines for filing, modifying, deleting or recycling any and all electronically
stored information and documents MUST BE SUSPENDED and you MUST take steps
necessary to preserve responsive documents and information, including giving appropriate
instructions to any relevant direct reports, employees or contractors. This includes contacting
your IT Department to ensure that any automatic deletion settings on your systems and servers
are disabled.

For purposes of this letter, “electronically stored information” includes, but is not limited
to, all text files (including word processing documents), presentation files (such as PowerPoint),
spread sheets, e-mail files and information concerning e-mail files (including logs of e-mail

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history and usage, header information, and deleted files), Internet history files and preferences,
graphical files in any format, databases, calendar and scheduling information, task lists,
telephone logs, contact managers, computer system activity logs and all file fragments and
backup files containing electronic data, voice mails or other recordings, photographs, videos,
removable media (such as floppy disks, USB Flash drives, CDs and DVDs, tapes, data-
processing cards, computer magnetic tapes, backup tapes, drum and disk storage devices) or any
other medium upon which data can be stored. THIS NOTICE SUPERSEDES ANY AND
ALL EXISTING COMPANY DOCUMENT RETENTION POLICIES. DOCUMENTS IN
ANY WAY RELEVANT TO THIS CASE MUST BE RETAINED.

2. Document Production

At the present time, we do not know all of the documents that may exist that must be
maintained for [describe action or proceeding or investigation]. However, at a minimum,
please take steps to ensure that all documents identified on the enclosed “Notice of Document
and Data Retention,” whether in hard copy form or stored electronically, are maintained and
preserved.

In addition, please request that all [ ] employees and, to the extent applicable, former
employees involved with [ ] not destroy, disable, erase, encrypt, alter, or otherwise make
unavailable any electronic evidence relevant to any claims that may be asserted in this potential
litigation, and please make all reasonable efforts to preserve such data.

If you become aware of any instances of unauthorized document or data destruction,

please contact me immediately. Any requests for confidentiality will be respected.

I am not sure if you have gone through this process before with other litigation but, if not, I
am here to answer any questions you may have. While it is cumbersome, there are several recent
decisions out of the state and federal courts that make clear it is absolutely essential for litigants
(even before litigation begins) to preserve all relevant documents and data.

Very truly yours,

[name of attorney]

XXX:xxx
Enclosure

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 NOTICE OF DOCUMENT AND DATA RETENTION

PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE AND/OR WORK

PRODUCT DOCTRINE

STRICTLY AND HIGHLY CONFIDENTIAL

NOT FOR DISTRIBUTION BEYOND INTENDED RECIPIENTS

[Describe purpose of engagement including specifically whether the firm is

prosecuting or defending an action or proceeding, conducting an investigation or simply
providing advice and counsel regarding a potential action or proceeding.]

Pursuant to the law and court rules, [________ is/are] required to take all reasonable
steps to identify and preserve all hard-copy and electronically stored documents and data,
including email, that may be relevant to [________]. Failure to do so could result in sanctions
being issued by the court that could seriously jeopardize the ability to prosecute and/or defend
the matter.

The laws and court rules prohibiting the destruction of potentially relevant evidence
apply to electronically stored information in the same manner that they apply to other evidence.
Due to its format, electronic information is easily deleted, modified, or corrupted. Accordingly,
with your assistance, [_______] must take every reasonable step to preserve this information.

This includes, but is not limited to, an obligation to:

Discontinue all data destruction and backup tape recycling policies to the extent
such policies cover tapes and/or other media that are likely to contain relevant
information (see below for a list of categories of relevant information);
Preserve and retain all electronically stored data that may contain relevant
information and/or was generated or received by persons who may have personal
knowledge of the facts involved in the claim;
Preserve and retain passwords, decryption procedures (and accompanying
software), network access codes, ID names, manuals, tutorials, written
instructions, decompression or reconstruction software that relate to [Plaintiff]’s
electronic data storage systems;
Preserve and retain all potentially relevant electronic data in any format, media, or
location, including data on floppy disks, Zip disks, CD-ROMs, CDRWs, tape,
PDAs, cell phones, Blackberry, digital cameras, memory cards/sticks, or digital
copiers;
Suspend any and all document retention policies that could result in the
destruction of potentially relevant electronic documents; and
Maintain all other pertinent information and tools needed to access, review,
and/or reconstruct all potentially relevant electronic information.

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 Moreover, it is important to preserve and protect documents and data that may be subject
to production in connection with any potential litigation. Therefore, it is imperative that you take
all reasonable steps to prevent the automatic, intentional, or accidental destruction of relevant
documents and data.

PLEASE IMMEDIATELY HALT ALL HOUSEKEEPING, DESTRUCTION, OR

DELETION EFFORTS THAT COULD ALTER, MODIFY, OR DESTROY THE
FOLLOWING CATEGORIES OF RELEVANT DOCUMENTS, DATA, AND THINGS:

Any and all correspondence, e-mails, voice wave files, faxes, instant messages, text
messages, Power Points, notes, spreadsheets, database entries, meeting agendas and
minutes, summaries, calendar entries, graphics, animations, reports, records, and
memoranda concerning [___________]. This includes any contracts or agreements,
purchase orders, responses to RFPs and RFQs submitted by [________], work papers,
emails, letters, bills, correspondence, communications, lists, compilations, or other
documents or electronic data of any kind concerning [________].

Any and all e-mails and letters to or from [_______] or any representative of
[_______].

Any other documents which you believe may be relevant to the issues discussed
above.

Any electronic devices containing any of the above information must be preserved.

PLEASE PRESERVE THE FOREGOING IN THE FORM IN WHICH THEY

CURRENTLY EXIST UNTIL FURTHER NOTICE.

Other categories of documents, data, and/or things may be identified in the event
litigation proceeds. In addition, our counsel may follow up with you in the future to discuss any
documents, data, or things that you may have and how we may arrange collection.

Please respond to me via e-mail (__________) indicating that you have received this
Notice and understand the included instructions. If you have any questions, please do not
hesitate to let me know. In addition, if you become aware of any instances of unauthorized
document or data destruction, please contact either me immediately. Any requests for
confidentiality shall be respected.

Please also note that your obligation as an employee of [______] to comply with these
instructions is ongoing, and you should not deviate from these instructions until you receive
written notice from me that you are permitted to do so.

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 GUIDELINES FOR PREPARATION, TAKING AND

DEFENDING OF DEPOSITIONS IN FEDERAL CASES

by

JOHN P. McENTEE, ESQ.

Farrell Fritz, P.C.

Uniondale

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 GUIDELINES FOR THE PREPARATION,
TAKING AND DEFENDING OF DEPOSITIONS IN FEDERAL CASES

By: John P. McEntee

DEPOSITIONS GENERALLY

A. Sources of Authority

1. Generally, Federal Rules 26-32 govern discovery and deposition practices.

a. Local Court Rules

i. Consult SDNY and EDNY Civil Rules through court web sites:
http://www.nyed.uscourts.gov and http://www.nyed.uscourts.gov

ii. Local Rule 5.1 – deposition transcripts are not filed with Clerk’s
office (see also 30.1, 30.2, 30.3, 30.5, 30.6, 30.7)

iii. Rule 30.1 - expenses for depositions more than 100 miles from
courthouse

2. There may also be particular rules for individual cases or judges:

a. Judge may establish particular limits

b. Case may be coordinated with other cases for discovery

c. There may be a protective order in place for confidential information.

B. Purposes: A deposition or “EBT” (examination before trial) is pre-trial testimony taken

under oath, either in writing or orally. Fed. R. Civ. P. 30. What are the purposes of a
deposition?

1. To obtain discovery (FRCP 26(b) - “any matter, not privileged, which is relevant
to subject matter ... need not be admissible, only lead to discovery of admissible
evidence”)

a. Facts

b. Claims and legal theories

c. Identity of witness

d. Existence of documents and other evidence

e. Evidentiary foundation for documents and other evidence

f. Knowledge of how a business operates (e.g., how data is stored, types of

computer system used).

2. To obtain evidence for trial or a summary judgment motion

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 a. Preserve testimony of witness who may not be available at trial

b. Obtain admissions from adverse party

c. Obtain impeachment evidence

3. To pin the witness down to his or her story

4. To determine the heart of the claims or defenses

5. To evaluate the witness’ demeanor, credibility, and effectiveness

6. To develop information about an appropriate settlement

7. Trial

a. FRCP 32(a)(1): Any deposition may be used at trial by any party for
contradicting or impeaching the testimony of deponent as a witness or for
any other purpose permitted by the Federal Rules of Evidence.

b. FRCP 32(a)(2): Any deposition of a party may be used at trial for any
purpose.

c. FRCP 32(a)(3): The deposition of any witness, whether or not a party,

may be used at trial for any purpose if the witness is dead, more than 100
miles from the place of trial, ill, or for other exceptional circumstances is
unable to attend the trial.

C. Different Types of Depositions:

1. Oral deposition can be taken (e.g., of adverse party, non-party witness, expert)

2. Written questions, where oral testimony is not necessary - FRCP 31

3. Deposition by telephone and videoconference is becoming more and more

common where witnesses are scattered geographically. See FRCP 30(b)(4); Local
Rule 30.2 (motion for deposition by telephone or other remote means
“presumptively granted”).

4. Consider videotaping deposition for (1) trial preservation purposes; or (2) to

temper what would otherwise be an abusive deposition.

5. Skype is now being commonly used to take the deposition of a witness in a

remote location. See Guillen v. Bank of Am. Case No. C 10-05825 EJD, a+2 n.3
(N.D. Cal. Dec. 27, 2011) (collecting cases allowing depositions through Skype);
In re Mangiaparella, 2008 WL 4107182 (Bankr E.D.N.Y. Aug. 28, 2008)

D. Should You Depose?

1. Considerations

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 a. Limited to ten depositions (excluding expert depositions). FRCP 30(a)(2)(A);
FRCP 26(b)(4)(A).

b. Depositions can be expensive –Local Civil Rule 30.1 (applicant for deposition
of non-party witness more than 100 miles from courthouse may be ordered to
pay expense of attendance of one attorney for each adverse party at place
deposition is to be taken).

2. Who Can be Deposed?

a. Any Person. A party may take the deposition of any person, including a party.
FRCP 30(a)(1).

b. Opposing Party Experts.

i. Testifying Experts may not be deposed until after they have provided
their FRCP 26(a)(2)(B) report. FRCP 26(b)(4)(A).

ii. Consulting Experts may not be deposed except upon a showing of

“exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain the facts or opinions on the same
subject by means” or in compliance with FRCP 35(b)(medical
examination report). FRCP 26(b)(4)(B).

iii. The party seeking discovery must pay the expert a reasonable fee,
barring “manifest injustice.” FRCP 26(b)(4)(C).

c. Non-Party Witnesses. Any testimony given by the non-party witness will be

admissible by both sides at trial.

d. Your Own Witness. Generally done only if you need to preserve testimony
that might not be available at trial.

E. Mechanics of a deposition

1. Noticing a Deposition

a. Form of Notice

i. Form of notice prescribed in FRCP 30(b)(1). Reasonable notice of a

deposition must be given to every other party. Id. The notice may include
a request for document production. Id; see also Local Civil Rule 30.7
(produce documents in advance of deposition).

b. A notice directed to an organization need not designate the name of a particular

witness. Rather, it can designate particular matters that require testimony,
requiring the organization to designate one or more representatives to testify
about the designated matters. FRCP 30 (b)(6).

i. Notice should describe with reasonable particularity the subject matter of

the deposition. FRCP 30 (b)(6).
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 A deposition of a high-level executives must be justified. Harris v.
Computer Assocs., 204 F.R.D. 44 (E.D.N.Y. 2001).

c. For non-parties, must use a subpoena. FRCP 45.

d. How much notice does one have to give?

i. “Reasonable notice.” FRCP 30(b)(1).

ii. Notice must state the time and place of deposition and name and address
of each person being deposed. If the name is not known, a “general
description sufficient to identify the person or the particular class or group
to which the person belongs.”

e. Location of Deposition. As a general rule, the party noticing the deposition has
the right to choose location. Busseo v. Board of Education, 178 F.R.D. 390
(E.D.N.Y. 1998). Generally plaintiff should be available in forum; defendant
generally at residence or place of business. Proper place for taking deposition of
corporate defendant is generally the corporation’s principal place of business.
Powell v. Int’l Food Service, 52 F.R.D. 205 (D.P.R. 1991); Run-Mill Tows v.
Khashoggi, 124 F.R.D. 547 (S.D.N.Y. 1989).

f. Who has priority? In practice, the defendant usually has priority. However,
FRCP 26(d) provides that “[u]nless the court upon motion provides otherwise ...
methods of discovery may be used in any sequence and the fact that a party is
conducting discovery, whether by deposition or otherwise, shall not operate to
delay any other party’s discovery.”

g. Objections to notice. FRCP 32(d)(1) provides that all errors and irregularities in
the notice of taking a deposition are waived unless written objection is promptly
served upon the party giving the notice.

2. Who may attend deposition?

a. Parties and their attorneys.

b. Experts.

c. Others may potentially attend. See Local Rule 30.3 (unless otherwise
ordered by the court, any person who is a witness or potential witness
in the action may attend the deposition of a party or witness).

3. Scope of the deposition governed by FRCP 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody, condition
and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge or any discoverable matter. It is not
ground for objection that the information sought will be inadmissible at the trial if
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 the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.

4. Conduct of the deposition – FRCP 30(c):

“Examination and cross-examination of witnesses may proceed as permitted at the

trial under the provisions of the Federal Rules of Evidence. The officer before
whom the deposition is to be taken shall put the witness on oath and shall
personally, or by someone acting under his direction and in his presence, record
the testimony of the witness. The testimony shall be taken stenographically or
recorded by any other means ordered in accordance with subdivision (b)(4) of this
rule. If requested by one of the parties, the testimony shall be transcribed. All
objections made at the time of examination to the qualifications of the officer
taking the deposition, or to the manner of taking it, or to the evidence presented,
or to the conduct of any party, and any other objection to the proceedings, shall be
noted by the officer upon the deposition. Evidence objected to shall be taken
subject to the objections. . . .”

a. Consider introductory remarks/instructions at the beginning of a

deposition.

i. “If you don’t understand a question, will you let me know that? If
you answer a question, may I assume you understand the question?

ii. Inquire about influence of medication/alcohol.

iii. Tell witness it is okay to ask to take breaks, but not when a
question is pending.

b. Depositions are limited to one day, seven hours per witness. FRCP
30(d)(2).

F. When can a Witness be Deposed?

1. By motion prior to the commencement of an action.

2. After commencement of an action.

a. No party may serve discovery demands prior to the discovery conference

required by FRCP 26(f). FRCP 26(d)(1).

3. Pending appeal.

a. A party may seek permission to take a deposition during the pendency of

appeal to perpetuate the witness’s testimony. FRCP 27(b).

b. The motion must state: the names and addresses of the persons to be
examined; the substance of the testimony to be elicited from each witness; and
the reason(s) for perpetuating the testimony.

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 PREPARATION FOR THE DEPOSITION

A. Preparation By Counsel Taking The Deposition:

1. You should be thoroughly familiar with your case before you examine any
witness.

a. Gather and analyze relevant records:

i. Pleadings and motion papers.

ii. Documents received from client.

iii. Documents produced by other parties and non-parties.

iv. Publicly available documents, such as:

Google search results

NEXIS search results
SEC filings
Information from social media sites
Prior testimony
Publications
Case law search
Court filings in other cases

b. Meet with your client and key witnesses and get their version of the facts;
see if they have insight into the deponent.

2. Know the industry and/or specialized field of the witness.

3. Understand each element of the claims and defenses in the pleadings.

4. Determine in advance of the deposition how court will handle telephonic rulings
or formal motions if disputes arise during the deposition.

5. Prepare a detailed outline. For each exhibit you intend to mark for identification
and show to the deponent, have a copy for all counsel. The exhibits should be
keyed to the outline and organized in the order you intend to have them marked
for identification. Organization is critical.

B. Preparing the Corporate Spokesperson or “30(b)(6)” Witness:

1. FRCP 30(b)(6) – “the person designated [by the corporation] must testify about
information known or reasonably available to the organization.”

a. FRCP 30(b)(6) imposes an obligation to prepare the designated witness to

communicate the organization’s knowledge. Black Horse Lane Assoc.,
L.P. v. Dow Chemical Corp., 228 F.3d 275, 304 (3d Cir. 2000).

b. Where reasonable efforts have been made to prepare 30(b)(6) witness,

experience indicates that courts are practical about what any individual
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 can be expected to carry in her head. See 3 Haig, Robert, L. Business and
Commercial Litigation in Federal Courts, Third Edition (West Publ. Co.
2011), Depositions, p. 138-39 (citing Dwelly v. Yamaha Motor Corp., 214
F.R.D. 537 (D. Minn. 2003) and Wilson v. Lakner, 228 F.R.D. 524, 330
(D. Md. 2005).

c. Consider designating more than one witness for a particular topic where
the topic is broad.

d. Clear professional obligation to have 30(b)(6) witnesses prepared on the

designated subject matter.

i. Obligation includes reviewing the relevant files and other records

of the witness.

ii. It also includes reviewing other relevant documents of the

corporation and prior testimony of persons who have testified on
the subject. See Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe
Co., Inc., 201 F.R.D. 33 (D. Mass. 2001).

iii. It may also include obtaining information from current or past

employees, to the extent reasonably available. See Berwind
Property Group Inc. v. Environmental Management Group, Inc.,
233 F.R.D. 62, 65 (D. Mass. 2005).

e. 30(b)(6) witness must understand that his or her preparation and answers
may have a profound impact on the organization’s overall case.

f. Stress importance of qualifying answer if witness does not have personal

knowledge or cannot clearly recall the content of reviewed documents.

C. Expert Witness Deposition

1. Expert is an individual with scientific, technical or other specialized knowledge

qualified as an expert by knowledge, skill, experience, training or education. FRE
702.

2. The expert’s knowledge must assist the trier of fact to understand the evidence or
to determine a fact in issue and the expert’s testimony must be (a) based upon
sufficient facts or data; (b) the product of reliable principles and methods; and (c)
based on a reliable application of principles and methods to the facts of the case.
FRE 702.

3. Required Disclosures: Prescribed in FRCP 26(a)(2):

a. Written Report by Expert – Complete statement of all opinions and the

bases and reasons, the data or other information considered by the witness
informing the opinions and any exhibits that will be used at trial.

b. Qualifications of Expert.

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 c. Compensation to be paid to Expert for Testimony.

d. Prior cases the Expert has participated in.

4. Review the Disclosure:

a. Retrieve all of the expert’s prior publications.

b. Obtain transcripts of prior testimony.

c. Look for expert’s affiliations with parties in the case.

d. Obtain, if possible, all drafts, correspondences and documents that expert

used in preparation of written report.

5. What to ask the Expert?

a. Examine Expert’s background in detail and question qualifications.

i. Education.

ii. Employment.

iii. Publications.

iv. Teaching experience.

v. Professional societies.

b. Probe for prior testimonial inconsistencies or rulings that purported expert

was not an expert.

c. Question the expert’s bias.

i. Testify more for plaintiffs or defendants?

ii. Percentage of time spent as expert?

iii. How much is expert being paid?

iv. Has Expert been retained by party before?

d. Question the expert’s opinion.

i. The amount of time expert spent on this case.

ii. The identities of all persons who have assisted him or her and the
nature of the assistance provided.

iii. Titles of resources consulted in preparing the report.

iv. Whether expert has completed his/her analysis of the issue.

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 v. What role did opposing counsel play in preparing the report?

(a) Where are the drafts?

(b) Who prepared the drafts?

(c) Who wrote the final report?

(d) Who reviewed the drafts of the report as it was being

written?

(e) Were the drafts commented on by counsel?

e. Bases of expert’s opinion.

i. What are factual assumptions based on?

ii. Is opinion replicable?

iii. Is there support for position in relevant field/community?

iv. Contrary views exist?

TAKING AND DEFENDING A DEPOSITION

A. Questioning Techniques

1. Use simple, direct questions.

2. Make sure the questions posed are clear and concise; not compound; not negative;
not vague or ambiguous.

3. Speak in simple, layperson’s language. Avoid legalese.

4. Make sure the witness answers the question posed. If after a rambling answer you
are not sure, ask the reporter to read back the question and answer.

5. Although you shouldn’t ask the witness to guess or speculate, you may properly
try to get his or her “best recollection” or “best estimate.” If the witness states he
does not know, for example, how many meetings took place during a particular
period, try to bracket the witness (Q-Were there more or less than ten meetings?
A-More. Q-Were there more or less than twenty meetings? A-More. Were there
more or less than fifty meetings? A-Less. More or less than thirty meetings? A-
Less. So your best estimate is that there were between 20-30 meetings? A-Yes)

6. Do not begin questions with phrases such as “Do you recall if...?”

B. Use of Documents

1. The use of documents is effective in examining witnesses.

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 a. Documents can be used to refresh the recollection of a witness who does
not recall what happened.

b. Documents can be used to confront the witness with prior inconsistent

statements in order to persuade the witness to change his attorney.

c. If admissible under the hearsay rule (e.g., business record, admission,

etc.), a document may constitute important independent evidence.

2. Use of documents generally

a. Usually, a witness should testify from his own knowledge without

referring to any documents.

i. Generally, before showing the witness the document, have him

testify from memory about the underlying events.

b. Before showing a document to a witness have it marked for identification

by the reporter.

c. You can then identify the document while asking questions to lay an
authenticity foundation for the exhibit (Sir, I am handing you a five page
document marked for identification as Defendant’s Exhibit A. Do you
recognize it? What do you recognize it to be? How do you recognize it?).
You may want to ask questions to establish where the original document is
for best evidence rule purposes and questions to address hearsay issues
(e.g., business record foundation).

d. Any time you refer to an exhibit, identify it by exhibit designation, not

simply by “this letter.”

C. Handling Objections and Interruptions By Defending Counsel

1. Objections made during a deposition must be stated concisely and in a non-

argumentative manner. FRCP 30(c)(1). A person may instruct a deponent not to
answer only when necessary to preserve a privilege, to enforce a limitation
directed by the court, or to present a motion under FRCP 30(c)(2).

2. Objections that are waived if not made at the deposition:

a. the form of a question;

b. the manner of taking the deposition (FRCP 30(c)(2)(d));

c. the oath or affirmation (FRCP 30(c)(2)(d));

d. a party’s conduct (FRCP 30(c)(2), (d)); and

e. the competence, relevance or materiality of testimony, but only if the

ground for the objection might be corrected at the deposition (see NGM

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 Ins. Co. v. Walker Constr. & Dev., LLC, No. 11-cv-146, 2012 WL
6553272, at *2 (E.D. Tenn. Dec. 13, 2012)).

3. Common examples of objections to form:

a. Leading. Suggests its answer.

b. Argumentative. Includes the deposing attorney’s comment or argument in

the question.

c. Compound. Includes multiple questions phrased as a single question.

d. Misleading or mischaracterization. Misstates the record or the deponent’s

previous testimony.

e. Lacks foundation. Assumes foundational facts to which the deponent has

not testified.

f. Calls for speculation. Asks the deponent to testify on matters about which
the deponent has no personal knowledge.

g. Vague. The question is unclear or overly broad.

h. Calls for a legal conclusion. Asks the deponent to make a legal

conclusion.

4. Handling objections generally:

a. Do not become rattled by objections.

b. Where an objection is made but the witness is not directed to answer the
question, look directly at the witness and say “You may answer the
question.”

c. If your adversary objects based upon form, consider whether to rephrase

the question. Some considerations: by rephrasing, you may lose control,
as the defending counsel sometimes objects for tactical reasons. However,
if witness becomes unavailable for trial and the objection is later
sustained, that question and answer cannot be used.

5. Handling Speaking Objections.

a. Some courts hold a defending attorney should state only “Objection,

form” See Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573,
575 (D. Del. 1993).

b. Some courts hold a defending attorney may state “objection as to form”

and the basis for such objection, for example, “compound question” (See
Abu Dhabi Commercial Bank v. Morgan Stanley & Co, No. 08-cv-7508,
2011 WL 4526141, at *8 (S.D.N.Y. Sept. 29, 2011); Turner v. Glock, Inc.,
No. 02-cv-825, 2004 WL 5511620; at *1 (E.D. Tex. Mar. 29, 2004).
225
11
 c. Some courts hold that stating “calls for speculation” or “lacks personal
knowledge” as the basis for an objection and instructing the deponent to
answer “only if she knows” is an impermissible speaking objections (see
Cincinnati Insurance Co. v. Serrano, 2012 WL 28071, at *5 (D. Kan.
2012) (“Instructions to a witness that they may answer a question ‘if they
know’ or ‘if they understand the question’ are raw, unmitigated coaching,
and are never appropriate. This conduct, if it persists after the deposing
attorney requests that it stop, is misconduct and sanctionable.”); but see
Abu Dhabi Commercial Bank, 2011 WL 4526141, at *8 (calls for
speculation objection is appropriate).

6. Handling Clarifying Statements.

a. These are statements made by your adversary to “clarify.” If done

occasionally, it shouldn’t pose a problem. However, if it continues to the
point of abuse, consider contacting the court or terminating the deposition
and moving under appropriate grounds.

Interwoven\3245873.3
226
12
 DEPOSITIONS

by

OLIVER N. BLAISE, III, ESQ.

Coughlin & Gerhart, LLP

Binghamton

227
228
 Federal Civil Practice: A Primer
Thursday, November 14, 2013

V. DEPOSITIONS (Oliver N. Blaise, III, Esq.; 2:35-3:25 pm)

- Preparing Witnesses
- Examining Witnesses
- Expert Depositions

* These materials were prepared with the greatly appreciated support of Keith A. Gorgos, Esq.

V. Depositions
A. PREPARING WITNESSES
1. Discuss the following points and advice with witnesses:
a) Explain the overall purpose of depositions.
b) Talk about what a deposition is – testimony under oath and subject to
the penalty of perjury, with every word recorded by a stenographer
and possibly video; potentially used at trial.
c) Identify people to be in attendance, and the expected format.

d) Review key documents / filings in the case; documents related to

testimony.
e) Have them recall and review facts or key issues in the case.

f) Witness is entitled to a clear question that he understands and inform

the examiner if he does not understand the question.
g) Witness should be sure she understands the question; think about
answer before saying anything.
(1) Ask for ambiguous or technical terms to be explained.

h) Do not let an examiner use documents to put words in mouth.

i) Do not “volunteer” additional information or answers to unasked
questions.
(1) Answer “yes” or “no” when possible.
(2) Do not speculate or guess.

j) Answer truthfully and fairly – no good comes from being deceptive.

k) Avoid exaggeration. Do not try to improve upon facts of the case;
opposition may exploit this later to cast witness in negative light.
l) Avoid being careless with variables like time, speed, and distance –
give such subjects sufficient consideration before answering.
(1) Estimates or opinions should be identified as such.

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 (2) Do not guess if you cannot make a reasonable estimate.
m) Do not qualify favorable facts with “I guess” or “I think.”

n) When shown a document, read it in its entirety. Exception: if very

long, familiarize yourself with it, reading key portions and adjacent
material.
o) Carefully scrutinize photographs. Be certain before confirming they
correctly portray a scene at a specified time; if uncertain, indicate so.

p) Do not bring anything (papers, notes, calendar, etc.) that you would
not want to divulge to opposition.
q) Do not lose your temper and maintain a pleasant demeanor.
r) Avoid be intimidated or charmed.

s) Discuss work product and attorney client privilege issues.

t) Do not cut off the examiner’s question or your own attorney’s
objection; wait until an objection is resolved.

u) Try to enunciate clearly and speak audibly so the court reporter

records you precisely.
v) Dress neatly and conventionally (especially if videotaped).
w) Advice regarding Videotaped depositions:
(1) Remember that nonverbal communications – facial
expressions, body language, and other nonverbal events will
be recorded on tape.
(2) Witnesses should be aware of their tone of voice and
inflections.
(3) Long pauses – which are not recorded in transcripts – may
seem “amplified” on recorded video.
(4) Advise your witness on where to direct their gaze; erratic
eye movements between the examiner and the lens could be
misconstrued.

2. Conduct mock depositions

a) Challenge your witness with the toughest anticipated questions.
b) Discuss certain questions that are frequently / likely to be asked (e.g.,
car accident – the date, time, place, speeds, weather, road conditions,
injuries, remarks and statements made, etc.)
c) Have another attorney offer objections so the witness is used to
listening to them, and waiting for resolution.

B. EXAMINING WITNESSES
1. Federal depositions are governed by Fed. R. Civ. P. 30
2. Leave is generally not required to take a deposition, except as provided in
Rule 30(a)(2).

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230
3. Officer
a) Unless stipulated otherwise, deposition must be conducted before an
officer – appointed or designated under Rule 28.
b) Provides on-the-record statements under 30(b), identifying date,
time, place, etc.
c) Administers oath/affirmation to deponent.
d) Officer records testimony by the method designated under Rule
30(b)(3)(A) – records it personally, or directs another to do so in his
presence. Rule 30(c)(1).

4. Recording – Party who notices the deposition must specify recording

method in the notice.
a) May be recorded by audio, audio-visual, or stenographic means.
b) Noticing party bears recording costs.
c) Any party may arrange to transcribe a deposition.
d) With prior notice, any party may designate an additional recording
method, bearing the cost.

5. Notice and Other Formal Requirements – Rule 30(b).

a) Reasonable notice must be given to every other party by a party who
wants to conduct an oral deposition.

b) If a subpoena duces tecum (for production of evidence) is to be

served on the deponent, the designated materials for production must
listed in the Notice/attachment.

c) Notice to a party deponent may be accompanied by a Rule 34 request

for documents and things at the deposition.

6. Examination and Cross Examination – Rule 30(c).

a) The examination and cross examination of the deponent proceeds as
permitted at trial under the Federal Rules of Evidence. (except Fed.
R. Evid. 103 (Rulings on Evidence) & 615 (Excluding Witnesses)).

b) General rule of thumb: avoid cross examining favorable witnesses;

do not want to reveal key arguments and your strengths/weaknesses
to opposition.
(1) But correct and clarify any ambiguous, misleading, or
harmful testimony that could otherwise potentially be
introduced “uncorrected” at trial.

c) Have solid knowledge as to the documents and facts

d) Use simple questions.
e) Assist and respect the court reporter.
f) Be polite, serious, and professional.
g) Know what type of information you want, and its ultimate purpose:

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 (1) Discovery and investigation – questions should be broader
(e.g., Why?) to acquire as much information as possible that
may be helpful.
(2) Evidence at trial – questions should be precise, clean, direct,
and in admissible form. Be sure to get an answer to your
question.
(3) Subsequent Impeachment at trial – have the deponent
provide a detailed account of his version of the facts with
respect to various issues. Once he has committed to an
answer and provided it with sufficient certainty on a point –
do not readdress it – leave it alone.
h) Listen, and ask follow-up questions where necessary.
(1) If a deponent is unresponsive – don’t just move on – pursue
the issue to get a responsive answer, and possibly determine
the reason for the evasiveness.

i) If a deponent is argumentative in their answers and insists on

offering only self-serving assertions, object and move to strike any
answers that are harmful to your case.
(1) Also continue to instruct and ask the defending attorney to
instruct the deponent to answer responsively in a
nonargumentative manner.

j) Outline all key areas you need to cover ahead of time, and be sure
you hit them all; consider drafting and reading verbatim key
questions you want phrased in a certain manner.
k) To avoid receiving answers of “I do not recall” on certain key issues,
consider drafting a series of preliminary questions to place the
deponent in a position where it would appear they should recall the
ultimate question/issue.
l) Do not try to “win the case” at the deposition by “driving points
home.” Avoid revealing your key arguments and theories to the
opposition – save that for trial.

7. Duration
a) Generally limited to 1 day of 7 hours; may stipulate otherwise.
(1) Reasonable breaks during day should be given.
(2) Alternative arrangements may better suit parties.
(3) “It is expected that in most instances the parties” “will make
reasonable accommodations” – e.g., with a child/elderly
deponent, breaking up over 2 days may be best for all.

Notes of Advisory Committee on 2000 amendments (hereinafter

“2000 Notes”), Rule 30(d).

b) Court may order otherwise.

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232
 (1) Court may allow additional time if:
(a) Needed to fairly examine the deponent.
(i) e.g., Witness needs an interpreter.

(b) Any person or other circumstance impedes or delays

the examination.
(i) e.g., Witness failed to read numerous lengthy
documents sent in advance of deposition by
interrogating party.
(ii) e.g., power outage, health emergency.

2000 Notes, Rule 30(d).

(iii) Winn v. Associated Press, 903 F. Supp. 575,

581-83 (S.D.N.Y. 1995), aff’d, 104 F.3d 350
(2d Cir. 1996) (allowing the deposition to
continue for “however long it takes” and
ultimately granting motion for sanctions where
deponent insisted on writing out each question
and proposed answer prior to issuing a verbal
response).

(2) Court may impose sanctions (including attorneys’ fees and

expenses) on a person who impedes, delays, or frustrates
fair examination. Rule 30(d)(2).
(i) Heinrichs v. Marshall & Stevens Inc., 921
F.2d 418, 420 (2d Cir. 1990) (affirming award
of sanctions where “attorney’s behavior
toward opposing counsel ‘has been not merely
discourteous, offensive and unprofessional, but
in some instances, incomprehensibly vicious,’
and that his questioning of witnesses ‘was
often improperly argumentative and
confrontational’” and his “improper conduct
unnecessarily prolonged the depositions”).

c) Motion to Terminate or Limit the deposition can be made under Rule

30(d)(3) if:
(1) Conducted in bad faith or manner that unreasonably annoys,
embarrasses, or oppresses the deponent/party.
(2) If demanded, the deposition must be suspended for time
necessary to obtain order.

8. Objections
a) Objections must be “stated concisely in a nonargumentative and
nonsuggestive manner.”

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233
 Rule 30(c)(2), 2000 Notes and Notes of Advisory Committee on
1993 amendments (hereinafter “1993 Notes”), Rule 30.

(1) Deponent cannot be prompted by his attorney to answer a

certain way.
(a) e.g., Defending Attorney might try and say: “Don’t
guess on that question, if you don’t know or don’t
remember, just say you don’t know or don’t
remember.”

(b) Jones v. J.C. Penney’s Dep’t Stores, Inc., 228 F.R.D.

190, 198 (W.D.N.Y. 2005) (attorney “repeatedly
interjected himself into the deposition by answering
several questions put to Plaintiff before Plaintiff
could answer without being influenced by
[attorney’s] unsworn statements”).

(c) If suggestive objections/interjections occur, ask on

record, “Could you please not prompt the witness –
Rule 30(c) does not allow for that.”

(2) Excessive number of unnecessary objections may itself

constitute abusive and sanctionable conduct.
1993 Notes and 2000 Notes, Rule 30.

b) Objections are noted on the record, but the examination proceeds –

with the testimony being taken subject to the objection. Rule 30
(c)(2).
(1) Potential objections:
(a) To a party’s conduct
(b) The officer’s qualifications
(c) Manner of taking the deposition
(d) The form of questions or answers
(e) Any other aspect of deposition

c) Once an objection is noted, the deponent must typically respond.

See Rule 30(c)(2), 30(d)(2).
(1) Winn v. Associated Press, 903 F. Supp. 575, 581-83
(S.D.N.Y. 1995), aff’d, 104 F.3d 350 (2d Cir. 1996)
(allowing the deposition to continue for “however long it
takes” and ultimately granting motion for sanctions where
deponent evasively claimed a lack of knowledge as to basic
facts, clearly within her knowledge).

d) Deponent may be instructed not to answer only when:

(1) Necessary to preserve a privilege;

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234
 (2) Enforce a limitation ordered by the Court; or
(3) To present a Motion to Terminate or Limit the deposition.
Rule 30(c)(2).

e) Seek to clarify – on record – whether ambiguous objections/

interjections are instructing the deponent not to answer.
(1) e.g.:
Defending Attorney: “You can’t ask that, I think that’s work
product.”
Deposing Attorney: “Court Reporter, could you please read
back the question? [Question repeated back.] Are you
instructing your client not to answer the question?”

f) If Defending Attorney does not have legitimate objections, but is

merely trying to interject as much as possible to impede and delay
the examination – it is advisable to clarify his positions on the record.

g) Waiver of Objections – objections to errors or irregularities at

depositions are waived if not timely made during deposition and
relate to “matters that might have been corrected at that time,” such
as:
(1) The manner of taking the deposition
(2) Form of a question
(3) Oath or affirmation
(4) A party’s conduct. Rule 32(d)(3)(B).

9. Review & Changes by the Witness – Rule 30(e)

a) Upon request by deponent/party before completion of the deposition,
the deponent must be allowed 30 days to review the transcript/
recording and sign a statement re: changes.

C. EXPERT DEPOSITIONS – Rules and Other Considerations

1. Pursuant to Rule 26(a)(2)(A), parties must disclose the identity of any person
who may provide expert testimony at trial.
a) Parties may depose any such experts who may testify. Rule
26(b)(4)(A).
b) If expert report is required under Rule 26(a)(2)(B), deposition may
be conducted only after report is provided.
(1) Rule 26(a)(2)(B) typically requires reports (to accompany
expert disclosures) from:
(a) Witnesses retained or specially employed to provide
expert testimony; or
(b) Those employees who regularly give expert
testimony for the party.

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235
 2. Nontestifying Experts – Generally, a party may not depose nontestifying
experts (i.e., experts employed only for trial preparation and who are not
expected to testify). Rule 26(b)(4)(D).
a) Exceptions that allow deposing nontestifying experts: exceptional
circumstances “under which it is impracticable for the party to obtain
facts or opinions on the same subject by other means” or under Rule
35(b).

3. Communication & Preparation with the Expert

a) Be mindful of what you put in writing – do not want anything to be
misconstrued as though you are trying to bias or influence the
expert’s opinion.

4. Strategic Considerations in Examining Experts

a) Clarify the meaning of opinion language used in their reports.
b) Explore history as expert witness, past positions, publications, and
other indicators of potential bias.
c) Explore limits of their experience and expertise.
d) If report/opinions are narrow – look to demonstrate and confirm its
limitations.
e) If report/opinions are unreasonably broad – look to demonstrate and
establish such breadth.
f) Use the expert to try and learn the opposition’s predominant theory
in the case.
g) Determine whether expert is able to defend conclusions in report, and
whether other respected theories may exist.
h) Determine what the expert did to prepare for the deposition, and what
materials she reviewed.
i) Offer hypotheses and questions that may demonstrate a departure
from, or limitations of, the conclusions found in the report.
j) Look to determine the expert’s ability to handle future cross-
examination.

D. QUESTIONS?

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236
Heinrichs v. Marshall and Stevens Inc., 921 F.2d 418 (1990)
18 Fed.R.Serv.3d 1115

921 F.2d 418

United States Court of Appeals, [2]
Labor and Employment
Second Circuit. Hiring for a Period of Time

Gregory HEINRICHS, Plaintiff–Appellant, Measuring compensation by specific period does

v. not, in New York, render employment hiring for
MARSHALL AND STEVENS INCORPORATED, specific term.
Defendant–Appellee.
1 Cases that cite this headnote
Nos. 348, 349, Dockets 89–7339, 90–7427. | Argued
Nov. 5, 1990. | Decided Dec. 7, 1990.

Wrongful discharge action was filed. The United States [3]

Labor and Employment
District Court for the Southern District of New York, Hiring for a Period of Time
Miriam Goldman Cedarbaum, J., granted employer’s
motion for summary judgment based upon statute of Under New York law, measuring partial
frauds and awarded employer discovery sanctions. eligibility for compensation and promotion by
Employee appealed. The Court of Appeals held that: (1) specific period of service does not render
alleged five-year oral employment contract which was not employment hiring for specific term.
to be performed within one year was void under New
York statute of frauds; (2) award of attorney fees and 1 Cases that cite this headnote
expenses in connection with protective order regarding
conduct of plaintiff’s counsel during depositions was
proper; and (3) determination of discovery sanctions was
collateral issue which could be considered after action
was dismissed upon grant of summary judgment. [4]
Frauds, Statute Of
Validity and Enforcement of Contracts in
Affirmed. General

Issue of party’s intent with respect to

employment contract was not relevant, where
court determined that employment contract was
West Headnotes (7) void under New York statute of frauds.
N.Y.McKinney’s General Obligations Law §
[1]
5–701, subd. a.
Frauds, Statute Of
Sufficiency

Provisions in employee’s manual were wholly

insufficient to fulfill statute of frauds
requirement of writing, absent any promises or
[5]
undertaking that employment would be for five Federal Civil Procedure
years or for any definite term, and thus, alleged Discovery motions
five-year contract of employment, which was
oral and not to be performed within one year, Award to defendant of reasonable attorney fees
was void under New York statute of frauds. and expenses incurred in seeking protective
N.Y.McKinney’s General Obligations Law § order regarding conduct of plaintiff’s counsel
5–701, subd. a. during depositions, as well as additional
expense in defending particular depositions due
1 Cases that cite this headnote to prolonging of depositions because of
plaintiff’s counsel’s improper conduct was
proper, where counsel’s behavior was not

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

237
Heinrichs v. Marshall and Stevens Inc., 921 F.2d 418 (1990)
18 Fed.R.Serv.3d 1115

merely offensive and unprofessional but vicious.

Fed.Rules Civ.Proc.Rules 26(c), 37(a)(4), 28 Plaintiff Gregory Heinrichs appeals from two judgments
U.S.C.A. of the United States District Court for the Southern
District of New York (Miriam Goldman Cedarbaum,
2 Cases that cite this headnote Judge ) granting summary judgment on the merits in
favor of defendant Marshall and Stevens Incorporated and
awarding defendant $4,048.38 in discovery sanctions. We
affirm both judgments.
[6]
United States Magistrates [1] [2]
The complaint alleged that defendant had
[3]

Further review;  direct appeal breached plaintiff’s five-year contract of employment as a

valuation consultant and had wrongfully discharged him.
Whether magistrate improperly exercised Defendant moved for summary judgment on the grounds
authority reserved to district court by imposing that the alleged contract was oral and not to be performed
discovery sanctions was not before court of within one year, thus void under the New York Statute of
appeals, where district court conducted de novo Frauds, N.Y.Gen.Oblig.L. § 5–701(a). The district court
review of magistrate’s proposed sanctions granted defendant’s *420 motion on January 18, 1989 and
decision after considering objections by both entered judgment on February 10, 1989 dismissing the
sides. 28 U.S.C.A. § 636(b)(1); Fed.Rules complaint. Plaintiff claimed that the statute of frauds was
Civ.Proc.Rules 26(c), 37(a)(4), 28 U.S.C.A. satisfied by two provisions in the defendant’s manual for
employees. We agree with the district court that these
3 Cases that cite this headnote provisions are wholly insufficient to fulfill the statute’s
requirement of a writing. They merely set forth that a
valuation consultant may qualify for a certain level of
compensation and for a promotion if certain criteria are
[7] met if and after he remains employed for a five-year
Federal Civil Procedure
period; they do not contain any promise or undertaking
Failure to respond;  sanctions
that the employment is for five years, or for any definite
term. Measuring compensation by a specific period does
Determination of discovery sanctions is
not in New York render the employment a hiring for a
collateral issue which could be considered after
specific term. Watson v. Gugino, 204 N.Y. 535, 541, 98
action was voluntarily dismissed upon grant of
N.E. 18, 20 (1912); Tyson v. Hess, 109 A.D.2d 1068,
summary judgment. Fed.Rules Civ.Proc.Rules
1069, 487 N.Y.S.2d 206, 208 (4th Dep’t), aff’d on other
37, 56, 28 U.S.C.A.
grounds, 66 N.Y.2d 943, 498 N.Y.S.2d 778, 489 N.E.2d
10 Cases that cite this headnote 747 (1985); Dalton v. Union Bank of Switzerland, 134
A.D.2d 174, 175–76, 520 N.Y.S.2d 764, 765 (1st Dep’t
1987). Similarly, measuring partial eligibility for
compensation and promotion by a specific period of
service does not render the employment a hiring for a
specific term.
Attorneys and Law Firms
[4]
Plaintiff’s assertion that the district court erroneously
*419 John Walshe, New York City, for granted summary judgment upon a finding that there was
plaintiff-appellant. no intent to enter into a five-year contract, and that the
intent issue should have gone to the jury, is frivolous.
Michael E. Schoeman, New York City (Meryl S. Justin, This argument is based upon an alleged statement by the
Schoeman, Marsh & Updike, New York City, of counsel), district court, never transcribed, to the effect that no
for defendant-appellee. five-year contract was intended. Even if such a statement
Before MAHONEY and WALKER, Circuit Judges, and was made by the court, plaintiff has made no showing that
LEVAL, District Judge.* it was the basis for the grant of summary judgment. In any
event, the issue of the parties’ intent could only become
Opinion relevant upon a prior determination that the contract was
not void under the statute of frauds. As the district court
PER CURIAM:
reached the opposite conclusion, and we agree with that

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238
Heinrichs v. Marshall and Stevens Inc., 921 F.2d 418 (1990)
18 Fed.R.Serv.3d 1115

conclusion, the point evaporates. Like the imposition of costs,

attorney’s fees, and contempt
[5]
We also find no fault with the district court’s award of sanctions, the imposition of a Rule
sanctions to the defendant under Fed.R.Civ.P. 37(a)(4) 11 sanction is not a judgment on
and 26(c), the judgment for which was entered on April 5, the merits of an action. Rather it
1990. The magistrate’s January 20, 1989 memorandum requires the determination of a
opinion and March 23, 1989 order, which were “adopt[ed] collateral issue: whether the
in whole” by the district court on February 28, 1990, set attorney has abused the judicial
forth in great detail the improper conduct in depositions process, and, if so, what sanction
of plaintiff’s counsel, who did not argue this appeal. From would be appropriate. Such a
our review of the record, we agree that the magistrate determination may be made after
correctly concluded that the attorney’s behavior toward the principal suit has been
opposing counsel “has been not merely discourteous, terminated.
offensive and unprofessional, but in some instances,
incomprehensibly vicious,” and that his questioning of Id. at 2456. The Court’s reasoning that the determination
witnesses “was often improperly argumentative and of Rule 11 sanctions is a collateral issue that can be
confrontational.” The magistrate awarded the defendant considered after an action is voluntarily dismissed under
its reasonable attorney’s fees and expenses in connection Rule 41(a)(1)(i) applies with no less force to discovery
with its seeking a protective order regarding the conduct sanctions imposed under Rule 37 following a dismissal
of plaintiff’s counsel during depositions, as well as the upon a grant of summary judgment under Rule 56.
additional expense in defending the particular depositions
“defendant was required to incur because [plaintiff’s We hold therefore that the district court’s award of Rule
counsel’s] improper conduct unnecessarily prolonged the 37 sanctions entered on April 5, 1990, was not precluded
depositions.”1 We see no basis for disturbing the by its earlier dismissal of the case on the merits on
magistrate’s award of sanctions, including her February 10, 1989. This holding is consistent with our
determination of the appropriate amount of those decision in Penthouse Int’l, Ltd. v. Playboy Enterprises,
sanctions, adopted by the district court. Inc., 663 F.2d 371, 392 (2d Cir.1981), where we
remanded to the district court for a determination whether
[6]
Moreover, as the district court conducted a de novo to impose Rule 37 sanctions while simultaneously
review of the magistrate’s proposed sanctions decision affirming the dismissal of the complaint. See also John v.
after considering objections thereto by both sides, Louisiana, 899 F.2d 1441, 1446 (5th Cir.1990); Merritt v.
consistent with 28 U.S.C. § 636(b)(1) (1988), plaintiff’s Int’l Brotherhood of Boilermakers, 649 F.2d 1013,
argument that the magistrate improperly exercised 1016–18 (5th Cir.1981). In Merritt, the Fifth Circuit
authority reserved to the district court must fail. stated that in Roadway Express, Inc. v. Piper, 447 U.S.
752, 763–64, 100 S.Ct. 2455, 2462–63, 65 L.Ed.2d 488
[7]
The only argument of plaintiff that requires more (1980), the Supreme Court “implicitly recognized the
complete explication is that the district court was without authority of the district courts to make post-judgment
power to award discovery sanctions pursuant to Rule assessments of discovery expenses, and attorney’s fees
37(a)(4) after it had granted summary judgment under Rule 37.” 649 F.2d at 1018. What the Fifth Circuit
dismissing the merits of plaintiff’s action. We believe that termed implicit in Roadway Express we believe the
this argument, supported by our decision in *421 Johnson Supreme Court has made explicit in Cooter & Gell.
Chemical Co. v. Home Care Products, Inc., 823 F.2d 28,
31 (2d Cir.1987), is now foreclosed by the decision of the The judgments of the district court are affirmed.
Supreme Court in Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 110 S.Ct. 2447, 2454–57, 110 L.Ed.2d 359
(1990). Cooter & Gell upheld sanctions under Rule 11
which were imposed after a voluntary dismissal pursuant Parallel Citations
to Rule 41(a)(1)(i). After noting that “[i]t is well
established” that a federal court may consider 18 Fed.R.Serv.3d 1115
independent, collateral issues—such as costs, attorney’s
fees, and contempt sanctions—after an action is no longer
pending, 110 S.Ct. at 2455–56, the Court concluded:

Footnotes

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Heinrichs v. Marshall and Stevens Inc., 921 F.2d 418 (1990)
18 Fed.R.Serv.3d 1115

* The Hon. Pierre N. Leval, United States District Judge, Southern District of New York, sitting by designation.

1 The magistrate also awarded the defendant reasonable fees and expenses incurred in connection with its motion for a protective
order regarding plaintiff’s second document request.

End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 4

240
User Name: Keith Gorgos
Date and Time: 10/13/2013 3:35 PM EDT
Job Number: 5424549
Document(1)
1. Jones v. J.C. Penney’s Dep’t Stores, Inc., 228 F.R.D. 190
Client/matter: 90000-0001

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241
Keith Gorgos
Positive
As of: October 13, 2013 3:35 PM EDT

Jones v. J.C. Penney’s Dep’t Stores, Inc.

United States District Court for the Western District of New York
May 31, 2005, Decided ; May 31, 2005, Filed
03-CV-920A(F)

Reporter: 228 F.R.D. 190; 2005 U.S. Dist. LEXIS 17463

lines was fully established. He also repeatedly and inex-
cusably interrupted defendants’ questioning, particu-
NAKIESHA JONES, Plaintiff, v. J.C. PENNEY’S DE- larly by making unsworn remarks in response to
PARTMENT STORES, INC., NICHOLAS GOODWIN, defendants’ questions to plaintiff. These interruptions rep-
PAUL MEERBOTH, SCOTT PIEL and JANE DOE, resented egregious violations of the guidelines and
Defendants. Fed. R. Civ. P. 30(d)(1). However, the court found that
sanctions other than dismissal, particularly a monetary fine
Subsequent History: Motion denied by Jones v. J.C. for civil contempt, could achieve the purposes of deter-
Penney’s Dep’t Stores, Inc., 2005 U.S. Dist. LEXIS 17464 rence and avoiding any further potential prejudice to de-
(W.D.N.Y., May 31, 2005) fendants.

Disposition: [**1] Defendants’ motions for sanctions Outcome

(Doc. Nos. 40 and 41) GRANTED, in part, and DE- Defendants’ motions for sanctions were granted as to
NIED, in part. Defendants’ affidavits of costs as their requests for monetary fines. The court also amended
granted. a scheduling order to provide defendants a reasonable op-
portunity to reconstruct any relevant conditions pertain-
ing to the dismissal of plaintiff’s shoplifting charge. De-
Core Terms fendants’ motions for sanctions were denied as to their
requests for dismissal of plaintiff’s complaint.
deposition, discovery, scheduling order, motion to
compel, misconduct, oral argument, court order, noticed,
court finds, attorney-client, wilful, discovery request, LexisNexis® Headnotes
attorney’s fees, telephone, contempt, obey, tape,
reasonable expenses, bad faith, interrupted, deposing Civil Procedure > Discovery & Disclosure > General Overview
Civil Procedure > ... > Discovery > Methods of Discovery > Gen-
eral Overview
Case Summary Civil Procedure > Discovery & Disclosure > Discov-
ery > Misconduct During Discovery
Procedural Posture Civil Procedure > Judgments > Pretrial Judgments > General Over-
Plaintiff sued defendants, a department store and individu- view
Civil Procedure > ... > Pretrial Judgments > Default & Default Judg-
als associated with it, for civil rights violations after ments > General Overview
plaintiff was charged with shoplifting. Defendants filed Civil Procedure > ... > Pretrial Judgments > Default & Default Judg-
a Fed. R. Civ. P. 37 motion for dismissal or other sanc- ments > Default Judgments
tions. Civil Procedure > Sanctions > Misconduct & Unethical Behav-
ior > General Overview
Overview
Defendants requested dismissal of plaintiff’s complaint HN1 A district court may impose sanctions when a
or alternative sanctions pursuant to Fed. R. Civ. P. party fails to obey an order to provide or permit discov-
37(b)(2). Defendants claimed, inter alia, that plaintiff’s ery. Fed. R. Civ. P. 37(b). Such sanctions include an or-
counsel violated the court’s deposition guidelines by di- der directing that the matters regarding which the order
recting plaintiff not to answer questions and by answer- was made or any other designated facts shall be taken
ing questions for her. Plaintiff could not be excused from to be established for the purposes of the action in accor-
compliance by claiming ignorance of the guidelines be- dance with the claims of the party obtaining the order.
cause, despite several reminders of his duty to follow Fed. R. Civ. P. 37(b)(2)(A). Other sanctions authorized by
them, plaintiff’s counsel repeatedly directed plaintiff Rule 37(b)(2) include an order preventing a disobeying
not to answer questions without specifying a privilege ob- party from supporting a claim or opposing a defense or of-
jection. Plaintiff’s counsel never attempted to assert a fering designated evidence at trial, Fed. R. Civ. P.
colorable claim of privilege, so his violation of the guide- 37(b)(2)(B), an order striking pleadings, granting a stay
until the order is obeyed, or an order dismissing the ac-

242
Keith Gorgos
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228 F.R.D. 190, *190; 2005 U.S. Dist. LEXIS 17463, **1

tion or granting a default judgment. Fed. R. Civ. P. HN7 Fed. R. Civ. P. 30(g)(1) provides that where a
37(b)(2)(C). A court may also treat the disobedience of party who notices a deposition which the noticed party at-
the court’s discovery order as contempt. Fed. R. Civ. P. tends and is prepared to proceed with the deposition,
37(b)(2)(D). Finally, the court may impose reasonable and the party who noticed the deposition fails to pro-
expenses, including attorneys’ fees, caused by the par- ceed, the court may order such party to pay to the no-
ty’s failure to obey the court’s discovery orders. Fed. R. ticed party the reasonable expenses of attending the depo-
Civ. P. 37(b). sition, including attorney’s fees of such party. Fed. R.
Civ. P. 30(g)(1).
Civil Procedure > Discovery & Disclosure > Discov-
ery > Misconduct During Discovery Civil Procedure > ... > Discovery > Privileged Informa-
tion > General Overview
HN2 Imposition of discovery sanctions is within the Evidence > Privileges > Attorney-Client Privilege > General Over-
broad discretion of the court. view
Evidence > Privileges > Attorney-Client Privilege > Scope
Civil Procedure > ... > Discovery > Methods of Discov-
ery > General Overview HN8 Attorney-client privilege belongs solely to the cli-
Civil Procedure > ... > Discovery > Methods of Discov- ent and may be asserted only by the client or by one au-
ery > Inspection & Production Requests thorized to do so on the client’s behalf.
Civil Procedure > Discovery & Disclosure > Discov-
ery > Misconduct During Discovery Civil Procedure > Preliminary Considerations > Removal > General
Civil Procedure > Judgments > Pretrial Judgments > General Over- Overview
view
Civil Procedure > ... > Removal > Specific Cases Re-
Civil Procedure > ... > Pretrial Judgments > Default & Default Judg- moved > General Overview
ments > General Overview Civil Procedure > ... > Removal > Postremoval Remands > General
Civil Procedure > ... > Default & Default Judgments > Default Judg-
Overview
ments > Entry of Default Judgments
Civil Procedure > Discovery & Disclosure > Disclosure > Manda-
Civil Procedure > Sanctions > General Overview tory Disclosures

HN3 Although the sanctions of striking a pleading, or en- HN9 Federal, not state, rules of practice apply to actions
try of a default judgment, are available, they ordinarily removed pursuant to 28 U.S.C.S. § 1441(a)(b). 28
are not imposed unless disobedience has been wilful, in U.S.C.S. § 1447(a); Fed. R. Civ. P. 81(c). Under federal
bad faith, or otherwise culpable. Repeated failure of a practice, oral discovery orders of the court on the re-
party ordered to produce documents will also support or- cord need not be reduced to written form to be enforce-
dering as a sanction that a fact, the ascertainment of able.
which may be dependent upon the requested discovery,
be deemed established for purposes of trial. Further, open Civil Procedure > ... > Discovery > Privileged Informa-
and unequivocal defiance of court ordered discovery is tion > General Overview
sufficient to support a finding of bad faith or wilful mis-
conduct supporting the severe sanction of dismissal of HN10 Subsequent disclosure to a third party by a client
a pleading. of a communication with his attorney eliminates what-
ever privilege the communication may have originally
Civil Procedure > ... > Methods of Discovery > Depositions > Oral possessed.
Depositions
Civil Procedure > Discovery & Disclosure > Discov-
HN4 See Fed. R. Civ. P. 30(d)(1). ery > Misconduct During Discovery
Civil Procedure > Sanctions > General Overview
Civil Procedure > ... > Methods of Discovery > Depositions > Oral Evidence > Relevance > Preservation of Relevant Evi-
Depositions dence > Spoliation

HN5 See Fed. R. Civ. P. 30(d)(1). HN11 The United States Court of Appeals for the Sec-
ond Circuit has cautioned courts not to apply the sanc-
Civil Procedure > Pretrial Matters > Conferences > General Over- tion of dismissal except in extreme circumstances. In
view choosing the proper sanction, the court should consider
Civil Procedure > Sanctions > Contempt > General Overview the need to deter future similar misconduct, protection of
Civil Procedure > Sanctions > Contempt > Civil Contempt
a defendant’s interests, and remedying any potential
HN6 Violations of a Fed. R. Civ. P. 16(b) order are pun- prejudice to defendants caused by the misconduct as well
ishable by civil contempt as authorized by Fed. R. Civ. as the range of available sanctions to effectively satisfy
P. 37(b)(2)(D). Fed. R. Civ. P. 16(f). these requirements.

Civil Procedure > ... > Methods of Discovery > Depositions > Oral Torts > Intentional Torts > Malicious Prosecution > General Over-
Depositions view
Torts > ... > Malicious Prosecution > Elements > Favorable Termina-
tion

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228 F.R.D. 190, *190; 2005 U.S. Dist. LEXIS 17463, **1

HN12 Under New York law, dismissal of a criminal Meerboth and Piel at a local J.C. Penney’s store, was com-
charge in the interest of justice will support a later civil ac- menced in state court on July 9, 2003, and later re-
tion claim for malicious prosecution provided the rea- moved to this court.
sons for such dismissal are not inconsistent with the inno-
cence of the accused. Thus, under New York law, a On August 23, 2004, Defendants moved to compel dis-
dismissal based on considerations of mercy toward the ac- covery (Doc. Nos. 16 and 18). Following oral argument,
cused or which ends in a compromise with the accused conducted September 20, 2004, (Doc. No. 25) (Minute
does not support a malicious prosecution claim. Entry) the court determined that by reason of Plaintiff’s
service of the discovery responses sought by Defen-
Counsel: DEWEY P. SLOAN, JR., ESQ., Attorney for dants, after Defendants’ motions were filed, with the ex-
Plaintiff, Le Mars, Iowa. ception of the relevant files of Plaintiff’s attorney,
Glenn Edward Murray, Esq., Defendants’ motions had be-
RICHARD L. BAUMGARTEN, ESQ., Attorney for Plain- come moot. Id. Based on its finding that the informa-
tiff, Buffalo, New York. tion sought from Mr. Murray’s file regarding possible con-
ditions on [**3] the dismissal of Plaintiff’s criminal
FELDMAN, KIEFFER & HERMAN, LLP, Attorneys case by the Town of Clarence town court (″Town Court″),
for Defendants J.C. Penney’s, Goodwin & Meerboth, MI- was relevant to Defendants’ defense and that Plaintiff
CHELE K. SNYDER, of Counsel, Buffalo, New had, by her untimely responses to Defendants’ document
York. production requests, in violation of Fed.R.Civ.P. 34(b)
(responses to be served by the requested party 30 days af-
FREDERICK A. WOLF, ERIE COUNTY ATTORNEY, ter being served by the requesting party), waived any ob-
Attorney for Defendants Piel and Doe, KRISTIN KLEIN jections to such production based on the attorney-
WHEATON, Assistant County Attorney, of Counsel, client privilege, the court directed Plaintiff to provide
Buffalo, New York. the requested file. Id. In addition to asserting the file was
protected by the attorney-client privilege, Plaintiff ar-
Judges: LESLIE G. FOSCHIO, UNITED STATES MAG- gued that Defendants could obtain the information they
ISTRATE JUDGE. sought from the original docket sheet minutes entry of the
Town Court, entered on July 16, 2002. See Exhibit C
Opinion by: LESLIE G. FOSCHIO to Reply Affirmation of Richard L. Baumgarten, Esq.,
dated September 17, 2004 (Doc. No. 24) (″Baumgarten
Reply Affirmation″). According to Defendants, the re-
Opinion quested file will assist Defendants in establishing a po-
tential defense, i.e., that the Town Court dismissal was
based on ″the interest of justice,″ which, according to
[*191] DECISION and ORDER Defendants, under New York law does not constitute a
favorable [**4] disposition sufficient to support a claim
JURISDICTION for malicious prosecution. Reply Affidavit of Kristin
Klein Wheaton, Esq., dated September 15, 2004, (Doc.
This case was referred to the undersigned for all pretrial No. 23) P9. 2 Defendants also maintain that there is ″no
matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) transcript″ of a discussion between Plaintiff’s attorney
by order of the Hon. Richard J. Arcara filed December and the prosecutor on such issues, and the ″court re-
19, 2003 (Doc. No. 4). It is presently before the court on cords are not clear.″ Id.
Defendants’, J.C. Penney, Goodwin and [*192] Meer-
both, motion, filed November 3, 2004 (Doc. No. 40), and Further, because, as of the September 20, 2004 oral argu-
Defendant Piel’s motion, filed November 4, 2004 ment on Defendant’s motions to compel, the parties
(Doc. No. 41), seeking dismissal of the complaint or had failed to schedule Plaintiff’s deposition, the court or-
other sanctions pursuant to [**2] Fed.R.Civ.P. 37. dered the deposition be completed not later than Septem-
ber 30, 2004, the date for conclusion of fact discovery
BACKGROUND and FACTS established by the May 27, 2004 Rule 16(b) case manage-
ment order (″Scheduling Order″). (Doc. No. 13). In sup-
1
port of the instant motions, Defendants J.C. Penney,
Goodwin and Meerboth (″J.C. Penney Defendants″)
This civil rights action arising out of a state shoplifting [**5] submit the Affidavit of Michele K. Snyder, Esq.,
charge filed against Plaintiff by Defendants, based on an dated November 3, 2004 (Doc. No. 40) in Support of
encounter between Plaintiff and Defendants Goodwin, Defendants’ Motion for Sanctions (″Snyder Affidavit in

1
Taken from the pleadings and papers filed in connection with the instant motions.
2
Although Ms. Klein Wheaton refers to People v. Clayton, no citation to this case is provided. Applicable New York law on
this subject is discussed infra. Discussion, infra, at 26, n. 23.

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228 F.R.D. 190, *192; 2005 U.S. Dist. LEXIS 17463, **5

Support″) together with Exhibits A-D (″Defendants’ Ex- interfered with their questions to Plaintiff regarding her
hibit(s) ___″); Defendant Piel submits the Affidavit of criminal record, her claim for unpaid lost wages in the in-
Kristin Klein Wheaton, Assistant Erie County Attorney, stant case, and whether Plaintiff considered Mr. Rod-
dated November 4, 2004 (Doc. No. 41) (″Klein Wheaton gers Hicks, described as Mr. Baumgarten’s paralegal, as
Affidavit in Support″). Plaintiff’s opposition papers her attorney. Id. In each example, Defendants maintain
were not timely filed in accordance with this court’s Mr. Baumgarten interjected his unsworn statement prior to
scheduling order (Doc. No. 42), and Plaintiff, after the De- Plaintiff’s answer, thereby improperly influencing such
cember 2, 2004 deadline, sought an enlargement of answers. Id.
time for such late filing by motion filed on December 8,
2004 (Doc. No. 48). 3 [**8] Additionally, Defendants describe several other in-
stances where Mr. Baumgarten made suggestive state-
Defendants request dismissal of Plaintiff’s complaint, or ments before Plaintiff could respond to influence Plain-
alternative sanctions, pursuant to Fed.R.Civ.P. 37(b)(2) tiff’s answer to the question. Snyder Affidavit PP18-19. As
on several grounds. Snyder Affidavit in Support P2; Klein well, Defendants complain that Mr. Baumgarten improp-
Wheaton [*193] Affidavit in Support P2. Specifically, erly influenced Plaintiff’s response to Defendants’ ques-
[**6] Defendants contend that Plaintiff’s counsel, Rich- tions concerning her alleged damages by directing Plain-
ard L. Baumgarten, who defended Plaintiff’s deposition tiff’s attention to allegations in the Complaint. Id. P20.
on September 30, 2004, repeatedly violated this court’s Defendants further complained of Mr. Baumgarten’s re-
Deposition Guidelines (″the Guidelines″), included and peated interruptions of Defendants’ questions and par-
″So Ordered″ in the Scheduling Order, after J.C. Penney ticularly in regards to Defendants’ questions to Plaintiff
Defendants’ attorney, Ms. Snyder, requested that Mr. about a video surveillance tape of Plaintiff’s actions while
Baumgarten comply with the Guidelines; that Plaintiff in the Defendant J.C. Penney’s store, which are highly
failed to proceed with the deposition of Defendants Good- relevant to Plaintiff’s claims in this action. Snyder Affi-
win and Meerboth, as scheduled by agreement of the par- davit in Support P21. 5
ties for September 30, 2004 causing J.C. Penney De-
fendants to incur unnecessary costs, id; that Plaintiff failed [**9] Defendants’ requests for sanctions are further
to comply with the court’s September 20, 2004 on the re- based on Plaintiff’s failure to comply with the court’s Sep-
cord order that Plaintiff produce her criminal court at- tember 20, 2004 direction on the record, in ruling on De-
torney’s file regarding the Town Court’s disposition of the fendants’ motions to compel, to produce Plaintiff’s
shoplifting charges against Plaintiff, id; and that Plain- criminal defense attorney’s file, when Plaintiff repre-
tiff failed to produce a videotape identified in Plaintiff’s sented them as being in Mr. Murray’s possession. Sny-
discovery responses which had been requested by J.C. der Affidavit in Support P30-42; Klein Wheaton Affida-
Penney Defendants’ attorney at Plaintiff’s deposition. vit in Support PP7-9. Specifically, in opposition to
Snyder Affidavit in Support P2. Defendants’ motions to compel filed the day of the oral ar-
gument, Plaintiff submitted Mr. Murray’s affirmation,
Defendants point to three instances in Plaintiff’s deposi- dated September 17, 2004, which averred that Mr. Mur-
tion transcript where Mr. Baumgarten, after stating, er- ray ″maintained possession of the [Plaintiff’s] criminal
roneously, that the Guidelines were not ″on the record, file . . ..″ Exhibit B to Affirmation of Richard L. Baum-
[**7] ″ repeatedly directed Plaintiff not to answer De- garten, Esq., dated September 20, 2004 (Doc. No. 24)
fendants’ questions pertaining to Plaintiff’s social secu- P3. See also Snyder Affidavit P30; Klein Wheaton Affi-
rity number, a prior criminal conviction, and Plain- davit [*194] P7. In his opposing affirmation, Mr.
tiff’s prior arrests for assault, in violation of Guideline Baumgarten stated that he had ″conferenced this matter
No. 3 which prohibits an attorney’s direction that a wit- with Mr. Murray″ and that Mr. Murray would not pro-
ness not answer unless for the purpose of preserving duce the file absent Plaintiff’s consent or a court order
an objection based on a privilege. Snyder Affidavit in Sup- in order to protect Plaintiff’s attorney-client privilege in
port PP6-8; Klein Wheaton Affidavit in Support PP3-4. the file. Baumgarten Reply Affirmation P7. Defen-
4 dants noted that, following the September 20, 2004 oral ar-
Defendants also point to five instances during the depo-
sition that Defendants’ questions were interrupted by gument on Defendants’ [**10] motions to compel,
Mr. Baumgarten and his improper responses to Defen- the court granted the motions as to Mr. Murray’s file and
dants’ questions before Plaintiff could answer for her- directed, on the record, that Plaintiff produce the file to
self. Snyder Affidavit PP12-16; Klein Wheaton Affidavit Defendants by September 27, 2004, prior to September 30,
PP5-6. In particular, Defendants argue Mr. Baumgarten 2004, the date designated for Plaintiff’s deposition, to en-

3
By Decision and Order, filed contemporaneously herewith, the court denied Plaintiff’s motion.
4
A copy of the Scheduling Order and Guidelines are attached hereto as an Appendix.
5
According to J.C. Penney Defendants, Mr. Baumgarten ″frequently interrupted the questioning″ of Plaintiff. Snyder Affidavit
in Support P21. However, as Defendants have not submitted a complete transcript of the entire deposition, see Exhibit A to Sny-
der Affidavit in Support, the court is unable to determine the accuracy of J.C. Penney Defendants’ assertion.

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228 F.R.D. 190, *194; 2005 U.S. Dist. LEXIS 17463, **10

able Defendants’ potential use of the file at the deposi- der Affidavit in Support P36; Klein Wheaton Affidavit
tion. Snyder Affidavit in Support P31; Klein Wheaton Af- in Support P18; Exhibit A to Snyder Affidavit in Sup-
fidavit in Support P8. port at 9-10. 7 Additionally, Defendants referenced por-
tions of Plaintiff’s deposition in which Plaintiff testi-
However, Mr. Baumgarten rebuffed Defendants’ at- fied that, although she had possession of the file at an
tempts, by telephone and correspondence to Mr. Baum- earlier time, Plaintiff had made no effort to locate the file
garten, to obtain Plaintiff’s compliance with the court’s or- in connection with Defendants’ discovery requests and
der prior to Plaintiff’s deposition. Snyder Affidavit in this court’s order granting Defendants’ motion to com-
Support PP32-33, Exhibits B and C; Klein Wheaton Affi- pel its production, until Mr. Hicks asked her about it
davit in Support PP10-12, Exhibits B and C. Although just prior to Plaintiff’s deposition on September 30, 2004.
8
in his affirmation opposing Defendants’ motions and his Snyder Affidavit in Support PP39-40; Klein Wheaton
letter responding to Defendants’ requests that he pro- Affidavit in Support PP22-23, Exhibit A to Snyder Affi-
duce the file, dated September 28, 2004, Exhibit C to Sny- davit [*195] in Support at 127, LL 13-17; 135, LL
der Affidavit in Support, Mr. Baumgarten again repre- 3-16. As relevant, Plaintiff [**13] testified that, after dis-
sented that Mr. Murray would not produce the requested missal of the shoplifting charge in the Town Court, she
file without an order of the court, Defendants learned requested Mr. Hicks obtain the file from Mr. Murray and,
from Mr. Murray in a telephone conversation on Septem- after obtaining the file, she had stored it among her
ber 29, 2004, that Plaintiff had not informed Mr. Mur- other personal files at her Godmother’s home where it
ray of the court’s September 20, 2004 order directing may have been subject to extensive water damage (″my
production [**11] of the file. Snyder Affidavit in Sup- Godmother had a flood,″ ″those boxes [containing the file]
port P34; Klein Wheaton Affidavit in Support P14. were destroyed [in the] flood.″). Exhibit A to Snyder Af-
While Mr. Murray further informed defense counsel in fidavit in Support at 127, LL 10-17, at 128, LL 10-17.
their conversation, contrary to Mr. Baumgarten’s represen- Plaintiff’s deposition transcript does not indicate when, in
tation, Exhibit B, Klein Wheaton Affidavit in Support, relation to commencing this litigation, Plaintiff stored
that he would comply with the court’s order, Mr. Mur- the file, when the alleged water damage occurred, or how
ray subsequently revised his position by informing Defen- Plaintiff came to believe that the file was in fact ″de-
dants that, contrary to the statement in his September stroyed,″ as she testified.
17, 2004 affirmation and his earlier telephone conversa-
[**14] Defendants contend the manifest inconsisten-
tion with Ms. Klein Wheaton, he was not then in pos-
cies represented by Mr. Baumgarten’s submissions to the
session of the requested file because he had turned the file
court and defense counsel on this issue in opposing De-
over to Mr. Rodgers Hicks, a person Mr. Baumgarten rep-
fendants’ motions, regarding Mr. Murray’s September
resented to be paralegal at the time of Plaintiff’s depo-
17, 2004 affirmation relating to his possession of the file
sition, nearly two years earlier on October 15, 2002, at
and Plaintiff’s later deposition testimony, on September
Plaintiff’s request. Klein Wheaton Affidavit in Sup-
30, 2004, that Mr. Hicks had obtained the file from Mr.
port P16. 6
Murray on her behalf sometime during 2002, one year
prior to commencement of this lawsuit, demonstrates
Adding to the confusion created by Plaintiff and Mr. Plaintiff’s and Mr. Baumgarten’s failure to take reason-
Baumgarten regarding responsibility for production of able steps to locate the file and accurately respond to De-
the file, at the outset [**12] of Plaintiff’s deposition, Mr. fendants’ discovery requests as to its existence and where-
Baumgarten disavowed, in response to Ms. Klein abouts, which warrants imposing sanctions, including
Wheaton’s statement of Defendants’ efforts to obtain the dismissal of the Complaint, pursuant to Fed.R.Civ.P.
file, on the record, ever speaking with Mr. Murray 37(b)(2). 9 Indeed, that Plaintiff apparently knew prior to
about the subject file, that he, Baumgarten, lacked any commencing this action or at least prior to responding
control over the file, and further denied having any knowl- to Defendants’ requests that the file was likely destroyed
edge as to its location, including whether the file had at an earlier time, also demonstrates Mr. Baumgarten
been turned over to Mr. Hicks prior to Plaintiff commenc- failed to question Plaintiff as to the existence of the file
ing this action, as Mr. Murray informed Defendants. Sny-

6
The record is unclear whether such communication was by telephone or a fax message.
7
The plain inconsistency between Mr. Murray’s averment in his September 17, 2004 affirmation submitted to the court by Mr.
Baumgarten, Discussion, supra, at 5-6, and Mr. Baumgarten’s unsworn on the record statement to Defendants at Plaintiff’s de-
position on September 30, 2004 regarding Mr. Murray’s lack of possession of the file is not explained in the record.
8
The record does not indicate that Mr. Hicks was Mr. Baumgarten’s employee at the time Mr. Hicks obtained the file on Plain-
tiff’s behalf. ″At the time it [the file] was handed over to Mr. Hicks, I [Mr. Baumgarten] was not even in this case.″ Statement
of Richard L. Baumgarten, Esq., September 20, 2004, Exhibit A to Snyder Affidavit in Support at 9, LL 12-14; ″It was not within
my power to obtain it . . ..″ Id., L 18.
9
Defendants do not accuse Plaintiff of spoliation of the file.

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228 F.R.D. 190, *195; 2005 U.S. Dist. LEXIS 17463, **14

prior to serving Plaintiff’s responses. 10 Plaintiff’s contin- tions). HN2 ″Imposition of discovery sanctions is within
ued indifference to this issue is reflected in an [**15] un- the broad discretion of the court.″ Burns, supra, at 598
solicited letter from Mr. Baumgarten to the court, (citing Bobal v. Renssalear Polytechnic Institute, 916 F.2d
dated October 6, 2004, filed by the court contemporane- 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943
ously with this Decision and Order, in which Mr. Baum- (1991); and Penthouse Int’l, Ltd. v. Playboy Enterprises,
garten describes Ms. Klein Wheaton’s effort to obtain pro- Inc., 663 F.2d 371, 386-87 (2d Cir. 1981)).
duction of the file as ″a never-ending quest″ and,
because Mr. Murray no longer maintained possession of HN3 Although the sanctions of [**18] striking a plead-
the file, such effort, in Mr. Baumgarten’s opinion, was ing, or entry of a default judgment, are available, they
″folly.″ Letter of Richard L. Baumgarten to Hon. Leslie G. ″ordinarily are not imposed unless disobedience has been
Foschio dated October 6, 2004 (Doc. No. 73). wilful, in bad faith, or otherwise culpable.″ Burns, su-
pra (citing Societe Int’l v. Rogers, 357 U.S. 197, 212, 2
Finally, J.C. Penney Defendants also request sanctions L. Ed. 2d 1255, 78 S. Ct. 1087 (1958) (sanctions un-
available under Fed.R.Civ.P. 30(g)(1) based on Plain- der Rule 37 justified where responding party has control
tiff’s failure to proceed [**16] with the depositions of De- over documents requested and fails or refuses produc-
fendants Goodwin and Meerboth on September 30, tion without showing of inability to comply with court’s
2004, as the parties had agreed following the September order); and Daval Steel Products v. M/V Fakredine,
20, 2004 oral argument, and Plaintiff’s continued fail- 951 F.2d 1357, 1367 (2d Cir. 1991) (order prohibiting cor-
ure to provide a copy of a surveillance video tape to De- porations from presenting evidence on the issue of al-
fendants that Plaintiff stated, in response to Defen- ter ego liability for failure to respond to a court order re-
dants’ documents requests, she possessed. Snyder quiring document and witness production for
Affidavit in Support PP25-26; PP27-29. depositions)). Repeated failure of a party ordered to pro-
duce documents will also support ordering as a sanc-
DISCUSSION tion that a fact, the ascertainment of which may be depen-
dent upon the requested discovery, be deemed established
HN1 ″A district court may impose sanctions when ’a for purposes of trial. Burns, supra, at 597. Further,
party . . . fails to obey an order to provide or permit dis- open and unequivocal defiance of court ordered discov-
covery.’″ Burns v. Imagine Films Entertainment, Inc., ery is sufficient to support a finding of bad faith or wil-
164 F.R.D. 594, 598 (W.D.N.Y. 1996) (quoting Fe- ful misconduct supporting the severe sanction of
d.R.Civ.P. 37(b)). Such sanctions include an order direct- dismissal [**19] of a pleading. Jones v. Niagara Fron-
ing ″that the matters regarding which the order was tier Transportation Authority, 836 F.2d 731, 734 (2d Cir.
made or any other designated facts shall be taken to be es- 1987) (pro se plaintiff’s refusal to answer questions at
tablished for the purposes of the action in accordance court ordered deposition supported dismissal of com-
with the claims of the party obtaining the order.″ Fe- plaint) (citing Salahuddin v. Harris, 782 F.2d 1127, 1132
d.R.Civ.P. 37(b)(2)(A). Other sanctions authorized by Rule (2d Cir. 1986)).
37(b)(2) include an order preventing a disobeying party
from supporting a claim or opposing a defense or offer- 1. Violations of the Court’s Deposition Guidelines.
ing designated evidence at trial, Fed.R.Civ.P. 37(b)(2)(B)
[**17] , an order striking pleadings, granting a stay un- The record supports a finding that Mr. Baumgarten, with-
til the order is obeyed, or an order dismissing the ac- out justification, repeatedly violated, several of the
tion or granting a default judgment. Fed.R.Civ.P. court’s Deposition Guidelines that were attached to, incor-
37(b)(2)(C). A court may also treat the disobedience of porated by reference, and ″So Ordered″ in the May 27,
the court’s discovery order as contempt. Fed.R.Civ.P. 2004 Scheduling Order (Doc. No. 13). 11 Plaintiff can-
37(b)(2)(D). Finally, the court may impose reasonable not be excused from compliance by claiming igno-
expenses, [*196] including attorneys’ fees, caused by the rance of the Guidelines as, despite Ms. Snyder’s several
party’s failure to obey the court’s discovery orders. Fe- reminders of his duty to follow the Guidelines in the
d.R.Civ.P. 37(b); Thomas E. Hoar, Inc. v. Sara Lee Corp., conduct of Plaintiff’s deposition, Mr. Baumgarten never-
900 F.2d 522, 524 (2d Cir. 1990) (pattern of ignoring dis- theless repeatedly directed Plaintiff not to answer Ms.
covery requests and court orders supported award of at- Snyder’s questions without specifying a privilege objec-
torneys fees to prevailing party and evidentiary sanc-

10
Why Mr. Hicks, who apparently became Mr. Baumgarten’s paralegal after obtaining possession of the file from Mr. Murray,
did not advise Mr. Baumgarten regarding its location prior to serving Plaintiff’s discovery responses and filing opposition pa-
pers to Defendants’ motions to compel, is unexplained.
11
The Guidelines are consistent with Fed.R.Civ.P. 30(c) and (d)(1), (3). See Sheppard v. Beerman, 1999 U.S. Dist. LEXIS
16570, 1999 WL 1011940, *1 (E.D.N.Y. Sept. 23, 1999) (declining to modify or set aside magistrate judge’s rulings pertaining to dis-
covery disputes, including imposition of deposition guidelines, as such rulings were neither clearly erroneous nor contrary to
law); see also Hall v. Clifton Precision, 150 F.R.D. 525, 530 (E.D. Pa. 1993) (enforcing guidelines for conduct of depositions simi-
lar to the Guidelines at issue in this case).

247
Keith Gorgos
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228 F.R.D. 190, *196; 2005 U.S. Dist. LEXIS 17463, **19

tion as Guideline No. 3 and Fed.R.Civ.P. 30(d)(1) re- ten during the remainder of the deposition to assert a col-
quire. Snyder Affidavit in Support P3. Specifically, Guide- orable claim of privilege, Mr. Baumgarten’s violation
line No. 3 directs that ″Counsel shall not direct or of the court’s order, i.e., Guideline No. 3, is fully estab-
request that a witness [**20] not answer a question, un- lished. 13 Manifestly, Mr. Baumgarten failed to recall
less that counsel has objected to the question on the that the court’s Guidelines were attached to the May 27,
ground that the answer is protected by a privilege or a 2004 Scheduling Order, and were ″So Ordered″ in the
limitation on evidence directed by the court.″ As rel- text of the Scheduling Order. See Doc. No. 13 at 2. Later
evant, Rule 30 similarly provides that HN4 ″[a] person in the deposition, according to Defendants, Mr. Baum-
may instruct a deponent not to answer only when neces- garten, off the record, withdrew his direction that Plain-
sary to preserve a privilege, to enforce a limitation di- tiff not answer the question. Snyder Affidavit in Sup-
rected by the court, or to present a motion under Rule port P5. However, Mr. Baumgarten also objected to, and
30(d)(4).″ Fed.R.Civ.P. 30(d)(1) (underlining added). directed Plaintiff not to answer, several of Defendants’
[**23] other questions seeking specifics regarding her
[**21] Notwithstanding the Guidelines’s limitations, criminal record. Id. PP6-8. As to each question and di-
and Ms. Snyder’s request to Mr. Baumgarten that he com- rection to Plaintiff not to answer, Mr. Baumgarten, upon
ply with the Guidelines during Plaintiff’s deposition, being challenged by Defendants, failed to state any ba-
when Ms. Snyder asked Plaintiff for her social security sis for the objections and his direction to Plaintiff not to
number, Mr. Baumgarten directed Plaintiff not to an- answer. Id. Moreover, instead of making any effort to
swer. Snyder Affidavit in Support P3. Upon being chal- state plausible reason for his objections and directions to
lenged by Ms. Snyder to state the justification for his di- Plaintiff not to answer, in response to Ms. Snyder’s re-
rection to Plaintiff, Mr. Baumgarten said: ″Well, just peated requests, Mr. Baumgarten dismissively retorted,
based on my understanding of -- I’ll think of the privi- ″you can discuss it with the judge.″ Id.
lege and I’ll put it on the record [*197] when it comes
to my mind.″ Id. (underlining added). Mr. Baumgarten [**24] Additional violations of the Guidelines were com-
also mistakenly claimed, in opposing Ms. Snyder’s ef- mitted by Mr. Baumgarten when he repeatedly inter-
fort to obtain compliance with the Guidelines, that ″I jected himself into the deposition by answering several
[Baumgarten] don’t think he [the court] put any guide- questions put to Plaintiff before Plaintiff could answer
lines for depositions on the record.″ Id. P4 (bracketed ma- without being influenced by Mr. Baumgarten’s un-
terial added). However, the record demonstrates that at sworn statements. Snyder Affidavit in Support PP12-16.
the September 20, 2004 oral argument on Defendants’ mo- For example, Ms. Snyder asked Plaintiff the following
tions to compel, Mr. Baumgarten unequivocally ac- questions:
knowledged to the court that he had read the court’s May
27, 2004 Scheduling Order in which compliance with Snyder Q: Is it [sic] Mr. Hicks serving as
the attached Guidelines was ″So Ordered.″ Exhibit A to your attorney?
Affirmation of Richard L. Baumgarten Esq., dated Octo-
ber 14, 2004 (Doc. [**22] No. 33) at 44. 12 Baumgarten: Mr. Hicks is my paralegal.
Ms. Snyder: I’m asking the witness.
As the transcript of Plaintiff’s deposition provided to the The Witness (Plaintiff): He’s my attorney.
court fails to reveal any later attempt by Mr. Baumgar-
Q: So what’s your understanding of Mr.

12
Court: Now, I issued the scheduling order in this case on May 26th, correct?
Mr. Baumgarten: That is correct, Judge.
Court: And you read it?
Mr. Baumgarten: Judge --
Court: And you read it?
Mr. Baumgarten: Yes.
13
As a matter of relevancy, an objection that was not raised by Mr. Baumgarten, prevailing caselaw supports the propriety of
Ms. Snyder’s question seeking Plaintiff’s social security number. See Goodman v. City of New York, 2004 U.S. Dist. LEXIS 14155,
2004 WL 1661105 *2 (S.D.N.Y. July 23, 2004) (attorney’s direction not to answer question seeking, inter alia, witness’s social se-
curity number held improper -- information directed to be provided subject to a confidentiality agreement); Pearson v. Heavey,
1997 U.S. Dist. LEXIS 4110, 1997 WL 159656 *1-2 (S.D.N.Y. April 23, 1997) (absent showing that lawsuit was brought in bad
faith, deposition request for defendant’s social security number was relevant and information not subject to any broad judicially im-
posed limitation upon discovery based on security concerns for police officer defendant in civil rights case arising from false ar-
rest claim); Magedson v. Fina, 1993 U.S. Dist. LEXIS 1424, 1993 WL 35261 *4 (N.D.N.Y. Feb. 10, 1993) (granting motion to com-
pel request for social security information at plaintiff’s deposition subject to sealing order). Plaintiff did not offer to provide her
social security number subject to a confidentiality agreement.

248
Keith Gorgos
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228 F.R.D. 190, *197; 2005 U.S. Dist. LEXIS 17463, **24

Hicks’ [sic] role? this case, after being specifically reminded of his obliga-
tion to comply with them, constitutes willful violation
A. He’s Mr. Baumgarten’s paralegal.
of such order warranting sanctions.
Q. Did you know that before Mr. Baumgar-
ten answered my question? While the court determines that Mr. Baumgarten’s viola-
A: Yeah. tions of the Guidelines and Rule 30 are substantial and
wilful, the court nevertheless finds alternative sanctions,
particularly a monetary fine for civil contempt, other
Snyder Affidavit in Support P16; Exhibit A to Sny- than dismissal of the Complaint, as Defendants request,
der Affidavit in Support at 135, LL 20-23; at can achieve the purposes of deterrence and avoiding any
135, LL 1-8 (underlining added). The improper in- further potential prejudice to Defendants in this case. Al-
fluence of Mr. Baumgarten’s violation of Guide- though Mr. Baumgarten’s conduct during Plaintiff’s depo-
line No. 3 is palpable on this record. sition patently violated Guidelines Nos. 3 and 4, the
court finds Defendants’ questions do not relate directly
Defendants, additionally, complain that Mr. Baumgarten to Defendants’ ability to defeat Plaintiff’s claims or
improperly interrupted Ms. [*198] Snyder’s question- [**27] support Defendants’ defenses. Moreover,
ing of Plaintiff by responding to Ms. Snyder’s question so other than the inexcusable annoyance to Defendants’
as to suggest an [**25] answer to Plaintiff. Snyder Af- counsel caused by Mr. Baumgarten’s behavior, its disrup-
fidavit in Support PP18-22; Klein Wheaton Affidavit P6. tive effect on the deposition and the need to incur extra
For example, at one point in the deposition, while ques- expenses in bringing this motion, the court discerns no
tioning Plaintiff on the sequence of events that allegedly substantial prejudice to Defendants going to the merits
occurred at Defendant J.C. Penney’s store as recorded of the case, and Defendants point to none.
on a store video surveillance tape, Ms. Snyder asked Plain-
tiff:
Accordingly, the court does not find that directing any ad-
″. . . can we agree that the person on the verse inferences or findings of fact against Plaintiff’s
[video] tape at this particular junction fifteen case, preclusions of Plaintiff’s evidence, or dismissal of
thirty-four fifty something --″ the Complaint, permitted by Rule 37(b)(2) are warranted
by Mr. Baumgarten’s violations. However, to deter fu-
ture potential similar misconduct by Mr. Baumgarten (or
Mr. Baumgarten: I’m not going to stipulate that others similarly disposed), the court finds that Mr.
that’s the actual time or the authenticity as you do, Baumgarten’s violations of the Guidelines, a pretrial or-
I’m just going to stipulate that this tape says fif- der governing the conduct of discovery in this case, war-
teen thirty-four, but not that it is actually is in this rant punishment for civil contempt of court pursuant to Fe-
tape.″ [sic]. d.R.Civ.P. 16(f). 14 A Certification to the Chief District
Judge assigned to this case finding Mr. Baumgarten’s vio-
Snyder Affidavit in Support P21; Exhibit A to Snyder Af- lations of the Guidelines are acts constituting civil con-
fidavit in Support at 94, LL 2-9. tempt and recommending Mr. Baumgarten be held in civil
contempt of [**28] this court based on these acts, pur-
The court’s Deposition Guideline No. 4 states in rel- suant to 28 U.S.C. § 636(e)(6)(B)(iii), is therefore filed
evant part: ″Counsel shall not make objections or state- contemporaneously with this Decision and Order. Fur-
ments which might suggest an answer to a witness.″ This ther, based on the extensive and wilful interference with
direction mirrors the requirement of Rule 30(d)(1) that the effective conduct of Plaintiff’s deposition, the
HN5 ″any objection during a deposition must be stated court finds Mr. Baumgarten should personally pay the rea-
concisely and in a non-argumentative and non-sugges- sonable expenses of conducting Plaintiff’s deposition in-
tive manner.″ Fed.R.Civ.P. 30(d)(1) (underlining curred by Defendants, including attorney’s fees, as an
added). [**26] Here, Mr. Baumgarten’s repeated and un- additional sanction, fully warranted on this record, under
excused interruptions of Defendants’ questioning, par- Fed.R.Civ.P. 37(b)(2).
ticularly his unsworn remarks in response to Defen-
dants’ questions to Plaintiff, represent egregious violations [*199] 2. Failure to Conduct Deposition of Defendants
of Guideline No. 4 as well as Rule 30(d)(1). Further, as Goodwin and Meerboth.
the Guidelines represent an order of the court, Mr. Baum-
garten’s cavalier attitude toward this court’s order, that
the Guidelines apply to the conduct of all depositions in

14
HN6 Violations of a Rule 16(b) order are punishable by civil contempt as authorized by Rule 37(b)(2)(D). Fed.R.Civ.P.
16(f).

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Keith Gorgos
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228 F.R.D. 190, *199; 2005 U.S. Dist. LEXIS 17463, **28

J.C. Penney Defendants also argue that Plaintiff’s failure In this case, it cannot be disputed, Background and
to conduct the depositions of Defendants Goodwin and Facts, supra, that (1) Plaintiff failed to provide timely re-
Meerboth, scheduled by the parties for September 30, sponses to Defendants’ Rule 34(b) request for Plain-
2004, Snyder Affidavit P25, justify sanctions. 15 tiff’s criminal case file that Plaintiff had received from
[**29] When the court denied Plaintiff’s request to en- her attorney, Mr. Murray, approximately two years prior
large the Scheduling Order, November 18, 2004 Order, Defendants’ requests; (2) Plaintiff represented in her re-
Doc. No. 45, the court also found that Plaintiff, without sponses to Defendants’ Rule 34(b) production requests
good cause, had failed to conduct the deposition of De- served on Plaintiff on June 1st (by J.C. Penney Defen-
fendants Goodwin and Meerboth and that Plaintiff should dants) and July 25th, 2004 (by Defendant Piel) that Mr.
therefore be precluded from doing so after the Septem- Murray continued to retain the file as of the date of
ber 30, 2004 cut-off date for discovery established by the Plaintiff’s opposition, filed September 20, 2004, to Defen-
Scheduling Order. See also December 16, 2004 Order dants’ motions to compel, and further represented in
(Doc. No. 52). As Plaintiff failed to appeal the order to her opposing papers that Mr. [*200] Murray would not
the District Judge pursuant to Fed.R.Civ.P. 72(a), the No- release the file absent an order from the court; (3)
vember 18, 2004 Order became the law of the case. Ad- since well prior to commencing this action Plaintiff, not
ditionally, HN7 Rule 30(g)(1) provides that where a Mr. Murray, has maintained possession of the re-
party who notices a deposition which the noticed party at- quested filed but nevertheless failed to take any reason-
tends and is prepared to proceed with the deposition, able steps toward locating and timely producing the file
and the party who noticed the deposition fails to pro- (or had advised Mr. Baumgarten she had previously re-
ceed, the court may order such party to pay to the no- ceived the filed from Mr. Murray) in response to Defen-
ticed party the reasonable expenses of attending the depo- dants’ document requests; (4) Mr. Baumgarten’s
sition, including attorney’s fees of such party. representations [**32] to Defendants at Plaintiff’s depo-
Fed.R.Civ.P. 30(g)(1). Here, Plaintiff’s violation of Rule sition that he had had no prior conversation with Mr.
30(g) did not cause prejudice to Defendants justifying Murray regarding production of the file are severely con-
more severe sanctions, as requested [**30] by J.C. Pen- tradicted by Mr. Baumgarten’s September 20, 2005 sub-
ney Defendants than already imposed by the court; nev- mission to the court, ten days prior to Plaintiff’s depo-
ertheless, as Defendants incurred unnecessary costs be- sition, in opposition to Defendants’ motions, of an
cause of Plaintiff’s failure, without cause, to proceed affirmation, purportedly by Mr. Murray, stating that
with the scheduled Goodwin and Meerboth depositions Mr. Murray then maintained possession of the file and
on September 30, 2004, and Plaintiff’s reason for failing would not relinquish it to Defendants absent a court or-
to do so is not substantially justified, the court finds De- der or Plaintiff’s consent; 16 and (5) Plaintiff failed to rea-
fendants are entitled to the financial sanctions available sonably supplement her Rule 34(b) responses regarding
under Rule 30(g)(1) attributable to Plaintiff’s failure to the file, served after Defendants’ motion was filed as re-
depose Goodwin and Meerboth. quired by Rule 26(e)(2). Baumgarten Affirmation dated
September 20, 2004, Exhibit 2 (Affirmation of Glenn E.
[**31] 3. Failure to Produce Plaintiff’s Criminal File. Murray, Esq. dated September 17, 2002 (″Murray Affir-
mation″) (Doc. No. 24) PP3, 6.

15
In accordance with the court’s September 20, 2004 direction to complete discovery by the September 30, 2004 cut-off date
as established by the Scheduling Order, Plaintiff agreed to conduct the Defendants’ depositions, including Goodwin, Meerboth and
Piel, on September 30, 2004. Affidavit of Michele K. Snyder, Esq., dated October 27, 2004 in Opposition to Plaintiff’s Motion
to Extend Scheduling Order (Doc. No. 37) P5, Exhibits B and E. How the parties came to stipulate, without the court’s approval,
as required under Fed.R.Civ.P. 29, that Piel’s deposition would be taken December 17, 2004, well after the cut-off date, i.e., De-
cember 17, 2004, for discovery is not explained in the record on this motion. The letter communications, on which the court was not
copied, between Defendants’ attorneys and Mr. Baumgarten prior to September 30, 2004, inform that because of a previously sched-
uled and required law enforcement training session, Defendant Piel could not attend the September 30, 2004 deposition as the par-
ties had previously agreed and expected. Exhibit A to Klein Wheaton Affidavit, Letter of Kristin Klein Wheaton to Richard L. Baum-
garten (advising that Defendant Piel could not appear for the scheduled deposition on September 30, 2004 and proposing to
reschedule at another date). Mr. Baumgarten failed to bring J.C. Penney Defendants’ refusal to comply with his unexpected de-
mand, Exhibit D to Affirmation of Richard L. Baumgarten, Esq., dated December 6, 2004, Exhibit B to Plaintiff’s Motion to Ex-
tend Time for Filing Plaintiff’s Opposition (Doc. No. 48), that Goodwin, Meerboth and Piel be deposed on the same day as Plain-
tiff, to the court’s attention by motion to enforce the court’s September 20, 2004 direction that all depositions be completed in
accordance with the Scheduling Order on September 30, 2004, notwithstanding Piel’s unavailability because of scheduled train-
ing. Had Mr. Baumgarten done so, the court could have directed Piel appear for the deposition notwithstanding Piel’s training date,
or that the deposition of all three individual Defendants take place on an alternative date closer to the original September 30th cut
-off. Why Mr. Sloan, whom Plaintiff requested on September 20, 2004 be permitted take over the case for the specific purpose
of conducting depositions, could not conduct the scheduled deposition of Goodwin and Meerboth is also not explained by Plain-
tiff.
16
As late as September 28, 2004, by letter to Ms. Klein Wheaton, Mr. Baumgarten continued to assert this position. Exhibit B
to Klein Wheaton Affidavit in Support.

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Keith Gorgos
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228 F.R.D. 190, *200; 2005 U.S. Dist. LEXIS 17463, **32

Specifically, Mr. Murray’s [**33] September 17, 2004 af- sion of the file and could not, therefore, comply with
firmation states he will not release the file to any third the court’s directive. Snyder Affidavit in Support PP33-
person, id. P6, absent his client’s waiver of her attorney- 35; Klein Wheaton Affidavit in Support PP14-16.
client privilege ″or a Court’s order.″ Murray Affirma-
tion P6. 17 Further, in Mr. Baumgarten’s Reply Affirma- [**36] Thus, on this record the court finds that (1) af-
tion, dated September 20, 2004, opposing Defendants’ ter being served by Defendants in June and July 2004
motion to compel (Doc. No. 24), Mr. Baumgarten stated, with Defendants’ Rule 34(b) document production re-
″I [Baumgarten] have conference [sic] this matter with quests for the file, when responding to Defendants’ ini-
Glenn E. Murray, Esq.; and Mr. Murray, . . . has indi- tial requests for the file, and in opposing Defendants’
cated that absent a written waiver from his client, Ms. subsequent motions to compel, filed August 24 and 27,
Jones, or, otherwise, [sic] directed by Court Order, that he 2004, respectively, neither Plaintiff nor Mr. Baumgarten,
would not disclose Ms. Jones’ [sic] criminal file to any Plaintiff’s counsel, had made any effort to ascertain
third party.″ Id. P7 (bracketed material added). Despite the the existence or location of the requested file, rather Plain-
fact the court orally directed Plaintiff to produce the tiff merely asserted a general objection to production
file (which the court and Defendants’ attorneys had then of the file based on an attorney-client privilege lacking
been led by Plaintiff to believe was in Mr. Murray’s pos- any colorable basis, 19 thereby materially misleading both
session), Mr. Baumgarten, based on Mr. Murray’s al- Defendants and the court as to this issue; 20 (2) notwith-
leged affirmation, nonetheless demanded Defendants ob- standing Plaintiff’s lack of any confirmed knowledge
tain a written order of the court, asserting that to satisfy as to current existence and location of the file, Plaintiff
one of Mr. Murray’s two alternative requirements for re- submitted her attorney’s affirmation asserting the file’s
lease of the file, a written order of the court was re- current existence to be in Mr. Murray’s possession,
quired by Section 2219(a) of [**34] the New York thus reinforcing the court’s and Defendants’ attorneys’
Civil Practice Law and Rules (requiring a written order misperception created by Plaintiff’s lack of diligence and
for motions determined by a court). 18 In contrast to Mr. wilful disregard for the actual facts concerning the exis-
Baumgarten’s representation, when informed by Defen- tence and location of the file; (3) Plaintiff caused the
dants’ attorneys about the court’s oral direction, Mr. Mur- court to schedule and conduct [**37] unnecessary and
ray [*201] told Defendant Piel’s attorney, by tele- time-consuming oral argument on Defendants’ demand for
phone, he had not been previously advised by Plaintiff production of the file, and issue a futile order directing
of the court’s direction, and agreed to produce the file; its production, resulting in a waste of judicial resources
however, in a subsequent telephone call, Mr. Murray and unnecessary expense to Defendants in litigating
told Defendants’ attorneys that he no longer had posses-

17
Absent any showing by Plaintiff that Mr. Murray, two years after his representation of her in the criminal case, was autho-
rized by Plaintiff to assert the attorney client privilege, Mr. Murray was without standing to do so. Application of Sarrio, S.A., 119
F.3d 143, 147 (2d Cir. 1997) (HN8 attorney-client privilege belongs solely to the client and may be asserted only by the client
or by one authorized to do so on the client’s behalf, and citing In re von Bulow, 828 F.2d 94, 100 (2d Cir.), cert. denied, 481 U.S.
1015 (1987)). There is nothing in this record to suggest Mr. Murray was attempting to raise the privilege at Plaintiff’s behest.
18
However, HN9 federal, not state, rules of practice, apply to actions removed pursuant to 28 U.S.C. § 1441(a)-(b), 28 U.S.C.
§ 1447(a) (district may issue orders and process against parties to a removed case); Fed.R.Civ.P. 81(c) (Federal Rules of Civil Pro-
cedure ″apply to civil actions removed to the United States district courts from the state courts and govern procedure after re-
moval.″); Mroz v. City of Tonawanda, 999 F.Supp. 436, 449 (W.D.N.Y. 1998) (″Unless the case is remanded, after removal, ques-
tions of procedure are governed by federal law.″). Under federal practice, oral discovery orders of the court on the record need not
be reduced to written form to be enforceable. See Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991) (dis-
trict court authorized to impose Rule 37(b) sanctions for noncompliance with, not only written, but also oral orders of the
court, ″provided that there is a clearly articulated order of the court requiring specified discovery.″). Here, there can be no ques-
tion the court’s direction to Mr. Baumgarten to produce the file was ″clearly articulated″ following oral argument on Defendants’ mo-
tions. Doc. No. 25 Minute Entry; Exhibit A to Affirmation of Richard L. Baumgarten, Esq., dated October 14, 2004 (Doc. No.
33) in Support of Plaintiff’s Motion for Recusal at 35-36 (″The Court: [Defendants’] motion [to produce Mr. Murray’s file] is granted
. . . the file will be produced [by Plaintiff] five days from today’s date.″) (bracketed material added).
19
According to Plaintiff, she directed the file be turned over to Mr. Hicks, a third party not within the privilege then existing be-
tween Mr. Murray and Plaintiff, in 2002, thus destroying the privilege. See Tisby v. Buffalo General Hospital, 157 F.R.D. 157,
168 (W.D.N.Y. 1994) (HN10 subsequent disclosure to a third party by a client of a communication with his attorney eliminates what-
ever privilege the communication may have originally possessed) (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973)).
20
Indeed, based on Plaintiff’s deposition testimony that the first time anyone asked her about the file was when Mr. Hicks, rep-
resented by Mr. Baumgarten as his ″paralegal″ in this case, did so just prior to her deposition, Exhibit A to Snyder Affidavit in Sup-
port at 135, LL 7-16, it may reasonably be concluded that Mr. Baumgarten never spoke to Plaintiff (or, for that matter, Mr.
Hicks) about the file when preparing and serving Plaintiff’s answer to Defendants’ document requests, nor in filing Plaintiff’s op-
position to Defendants’ motion to compel in this court. Nor, apparently, did Mr. Hicks volunteer the information to Mr. Baumgar-
ten.

251
Keith Gorgos
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228 F.R.D. 190, *201; 2005 U.S. Dist. LEXIS 17463, **37

this issue; 21 (4) Plaintiff unreasonably failed to comply duce the file, assuming he had maintained possession of
with the court’s order to produce the file in a timely it as represented (albeit erroneously) in his affirmation
manner asserting, instead, a meritless ground for Plain- submitted to the court in opposing Defendants’ motions
tiff’s refusal to comply based on a non-existent attorney- to compel. Such inexcusable neglect by Mr. Baumgarten
client privilege, and, alternatively Plaintiff’s waiver of in meeting Plaintiff’s obligations to comply with prop-
the privilege in allowing Mr. Hicks to earlier obtain the erly served discovery requests under Rules 26 and 34, if
file from Mr. Murray; and (5) Mr. Baumgarten acted with not a deliberate misrepresentation to opposing counsel
unprofessional indifference to this court’s order to pro- and the court, was the direct cause of substantial and un-
duce the file in asserting, erroneously, that state law ap- necessary litigation of this issue and a dilution of judi-
plied requiring the court’s order be in written form. cial resources based on the lack of a good faith belief as
Upon this record, the court finds that Plaintiff and her at- to true circumstance of the file’s status. 22 Signifi-
torney have engaged in bad faith and willful miscon- cantly, Plaintiff admitted at her deposition that she did
duct in conducting discovery in this case warranting sanc- not know with certainty if the file remains in existence or
tions pursuant to Rule 37(b)(2). if it was in fact destroyed when flooding occurred at
her Godmother’s house where, according to Plaintiff, the
While such willful misconduct by Plaintiff and Mr. Baum- file was stored after she obtained it from Mr. Murray
garten in the conduct of discovery and related motion through Mr. Hicks over two years ago. Snyder Affidavit
practice in this case justifies sanctions pursuant to Rule in Support P40; Exhibit A to Snyder Affidavit in Sup-
37, HN11 the Second Circuit has cautioned courts not to port at 128. As the date of the alleged ″flood″ [**41] in
[**39] apply the sanction of dismissal except in ex- Plaintiff’s Godmother’s basement is not established by
treme circumstances. Compare West v. Goodyear Tire & the record before the court, the court is unable to deter-
Rubber Company, 167 F.3d 776, 780 (2d Cir. 1999) (dis- mine whether earlier compliance by Plaintiff with De-
missal of complaint too harsh as a sanction against plain- fendants’ document production requests when first served
tiff for spoliation of evidence) with Jones, supra, 836 by J.C. Penney Defendants on June 1, 2004 could have
F.2d at 734 (plaintiff’s refusal to answer questions at his avoided the loss of the file as Plaintiff testified. While Mr.
court ordered deposition justified dismissal of com- Baumgarten’s responses to Defendants’ attempts to ob-
plaint as sanction under Rule 37). In choosing the proper tain access to the file, as well as the court’s direct order to
sanction, the court should consider the need to deter fu- produce it, may be viewed as obstructionist in nature, De-
ture similar misconduct, protection of a defendant’s in- fendants have not demonstrated that absent such ac-
terests, and remedying any [*202] potential prejudice to cess, Defendants will be unable to reconstruct the exact
defendants caused by the misconduct as well as the nature of the Town Court’s disposition of Plaintiff’s crimi-
range of available sanctions to effectively satisfy these re- nal charges which, according to Defendants, included a
quirements. See West, supra, at 780. condition that Plaintiff not file any civil suit based on the
court’s dismissal of the charges, the principle reason
In the case at bar, it is undisputed that Plaintiff misled De- for seeking, according to Defendants, production and re-
fendants and this court regarding the availability of the view of the file. 23 As noted, Defendants do not claim
Plaintiff’s criminal file maintained by her former attor- Plaintiff, or Mr. Baumgarten, are guilty of spoliation of
ney, Mr. Murray, for production, particularly its pres- evidence.
ent possession by Mr. Murray, when its production was
initially sought by Defendants and, subsequently, while It is therefore fair to conclude that had Plaintiff pro-
Defendants’ motions to compel were litigated before vided an earlier and more accurate explanation [**43]
the court, as well [**40] as the lack of a good faith ba- why the file could not be produced, Defendants could have
sis for Plaintiff’s assertion of a viable attorney-client attempted to obtain, within the allotted time for discov-
privilege in the file, and Mr. Murray’s willingness to pro- ery under the Scheduling Order, such particulars, if any, by

21
The court’s conduct of the oral argument is asserted by Plaintiff as a basis for Plaintiff’s subsequent motion for recusal and
her complaint to the Second Circuit Council for Judicial Conduct Code violations against the undersigned.
22
In an unsolicited letter to the court, dated October 6, 2004, and not previously filed, Mr. Baumgarten mockingly referred to
Ms. Klein Wheaton’s effort to obtain the file as ″folly″ and a ″never ending quest.″ Letter of Richard L. Baumgarten, Esq., dated Oc-
tober 6, 2004 (with attachment) to Hon. Leslie G. Foschio (Doc. No. 73) at 1.
23
HN12 Under New York law, dismissal of a criminal charge in the interest of justice will support a later civil action claim for ma-
licious prosecution provided the reasons for such dismissal ″are not inconsistent with the innocence of the accused.″ Cantalino
v. Danner, 96 N.Y.2d 391, 754 N.E.2d 164, 167, 729 N.Y.S.2d 405 (N.Y. 2001) (citing Smith-Hunter v. Harvey, 95 N.Y.2d 191, 734
N.E.2d 750, 712 N.Y.S.2d 438 (N.Y. 2000)). Thus, under New York law, a dismissal based on considerations of mercy toward
the accused or which ends in a compromise with the accused does not support a malicious prosecution claim. Id. (citing cases).
See also MacFawn v. Kresler, 88 N.Y.2d 859, 666 N.E.2d 1359, 1359-60, 644 N.Y.S.2d 486 (N.Y. 1996) (interest of justice dis-
missal of theft charge based on court’s judgment that facts alleged by information insufficient does not support subsequent ma-
licious prosecution claim). Accordingly, the Town Court’s reasons for dismissal of Plaintiff’s case are highly relevant to the viabil-
ity of her state malicious prosecution claim.

252
Keith Gorgos
 Page 12 of 14
228 F.R.D. 190, *202; 2005 U.S. Dist. LEXIS 17463, **43

deposition, pursuant to Fed.R.Civ.P. 45, of Mr. Murray, Fed.R.Civ.P. Rule 16(b) and Local Rule 16.1(a), and a con-
the presiding judge of the Town Court, the prosecutor, or ference having been held on May 26, 2004 with coun-
the court clerk, to determine their recollections as to sel relative to the matter, it is ORDERED that:
any such condition that may provide a defense to any
claim asserted by Plaintiff in this action. As it is, substan- 1. Compliance with the mandatory disclosure require-
tial [*203] time has been wasted because Plaintiff in ef- ments found in Rule 26(a)(1) of the Federal Rules of Civil
fect sent both Defendants and the court on a veritable Procedure will be accomplished by June 15, 2004.
’wild goose chase’ for the file. However, as the court, on
this record, is unable to find either Plaintiff or Mr. Baum- 2. All motions to join other parties and to amend the plead-
garten guilty of spoliation of evidence, or a willful re- ings shall be filed on or before July 7, 2004.
fusal to produce the file, severe sanctions such as an ad-
verse inference ruling or dismissal of the Complaint [**46] 3. All fact discovery in this case shall conclude
are not warranted at this time. Therefore, because of the on September 30, 2004. All motions to compel discov-
lapse of time since this issue arose, in order to provide ery shall be filed on or before October 8, 2004.
Defendants a reasonable opportunity to reconstruct any
relevant conditions pertaining to the Town Court’s dis- 4. Plaintiff(s) shall identify any expert witnesses through
missal of Plaintiff’s shoplifting charge, it is necessary to interrogatories and provide reports pursuant to Fe-
amend the Scheduling Order, [**44] on a limited ba- d.R.Civ.P. 26 by October 15, 2004; (2) defendant(s)
sis, to permit such relief. Accordingly, the court finds there shall identify any expert witnesses through interrogato-
is good cause to amend, sua sponte, the Scheduling Or- ries and provide reports pursuant to Fed.R.Civ.P. 26 by
der to permit Defendants to conduct, for a period of November 15, 2004. All motions to compel expert dis-
45 days following service of this Decision and Order, 24 covery shall be filed not later than November 22, 2004.
non-party depositions and related document produc-
tion, pursuant to Fed.R.Civ.P. 45, directed to the ques- 5. A pretrial conference will be held with the under-
tion of the nature, under New York law, of the dismissal signed at 424 U.S. Courthouse, Buffalo, New York on De-
of Plaintiff’s charges, as judicially ordered by the cember 8, 2004 at 11:00 a.m. to discuss the possibility
Town Court and the reasons for such dismissal. 25 of settlement. In preparation for the settlement confer-
ence, counsel shall consult Local Rule 16.1(c). Repre-
CONCLUSION sentatives of the parties shall be available either in per-
son or by telephone conference. Prior to the conference the
Based on the foregoing, Defendants’ [**45] motions parties are expected to exchange a [*204] demand
for sanctions (Doc. Nos. 40 and 41) is GRANTED, in part, and an offer in a good faith effort to settle the case with-
and DENIED, in part. Defendants’ affidavits of costs out court involvement.
as granted by this Decision and Order shall be filed not
later than 10 days following service of this Decision and 6. Dispositive motions, if any, [**47] shall be filed no
Order. Plaintiff’s response shall be filed not later than later than December 30, 2004. Such motions shall be
10 days of such service. Oral argument shall be at the made returnable before the Magistrate Judge.
court’s discretion.
7. If the case is not settled and if no dispositive motions
SO ORDERED. are then pending, the parties will be directed to meet
LESLIE G. FOSCHIO with Judge Arcara for the purposes of scheduling the case
to trial.
UNITED STATES MAGISTRATE JUDGE
8. No extension of the above cutoff dates will be
Dated: May 31, 2005
granted except upon written application, filed prior to
Buffalo, New York the cutoff date, showing good cause for the extension. Ap-
plication must be made to the Magistrate Judge. More-
APPENDIX over, if counsel are of the belief that an intermediate con-
ference with Judge Arcara or the Magistrate Judge
ORDER would be of assistance in the prompt disposition of the
case, such a conference will be scheduled upon applica-
Pursuant to the order of the Hon. Richard J. Arcara refer- tion of any party.
ring the above case to the undersigned for pretrial pro-
cedures and the entry of a scheduling order as provided in The attached guidelines shall govern all depositions.

24
The court has previously awarded Defendants their costs in connection with the motion to compel.
25
Plaintiff attached a copy of the relevant minute entry from the Town Court. Exhibit C to Baumgarten Reply Affirmation,
dated September 17, 2004, (Doc. No. 24). However, the court finds much of the handwritten entry to be indecipherable and, as
such, it is unable to determine these questions based on the document.

253
Keith Gorgos
 Page 13 of 14
228 F.R.D. 190, *204; 2005 U.S. Dist. LEXIS 17463, **47

Counsel’s attention is directed to Fed.R.Civ.P Rule 16(f) noted on the record by the counsel who par-
calling for sanctions in the event of failure to comply ticipated in the conference. The purpose
with any direction of this court. and outcome of the conference shall also be
noted on the record.
SO ORDERED.
(8) Deposing counsel shall provide to the wit-
LESLIE G. FOSCHIO ness’ counsel a copy of all documents
shown to the witness during the deposition.
UNITED STATES MAGISTRATE JUDGE The copies shall be provided either before the
deposition begins or contemporaneously
DATED: May 27, 2004 with the showing of each document to the wit-
ness. The witness and the witness’ counsel
Buffalo, New York do not have the right to discuss documents pri-
vately before the witness answers questions
GUIDELINES FOR DISCOVERY DEPOSITIONS about them.

(1) At the beginning of the [**48] deposi- (9) There shall be only one question at a
tion, deposing counsel shall instruct the wit- time put to a witness. [**50] Counsel shall
ness to ask deposing counsel, rather than permit the witness to fully answer before
the witness’s own counsel, for clarifications, propounding subsequent or follow-up ques-
definitions, or explanations of any words, tions. If the witness indicates he or she does
questions, or documents presented during the not understand the question, counsel shall
course of the deposition. The witness shall simply rephrase the [*205] question. There
abide by these instructions. is to be no characterization or comment by
examining counsel as to any answer given by
(2) All objections, except those which would a witness. Should the answer reasonably ap-
be waived if not made at the deposition un- pear to counsel to be unresponsive, coun-
der Fed.R.Civ.P. 32(d)(3)(B), and those neces- sel may so advise the witness and his or her
sary to assert a privilege, to enforce a limi- counsel and have the question repeated by
tation on evidence directed by the court, or to the stenographer from the record.
present a motion pursuant to Fed.R.Civ.P.
(10) Examining counsel shall not engage in
30(d), shall be preserved. Therefore, those ob-
jections need not and shall not be made dur- any argument with opposing counsel as to
ing the course of deposition. these issues, rather his objection shall be
taken on the record and appropriate relief from
(3) Counsel shall not direct or request that a this court may be sought upon completion
witness not answer a question, unless that of the examination. Similarly, counsel for a
counsel has objected to the question on the witness shall not engage in any argument with
ground that the answer is protected by a privi- examining counsel as to the objectionability
lege or a limitation on evidence directed by of any question. Rather, he may note his ob-
the court. jection and permit the witness to answer
the question, subject to the objection.
(4) Counsel shall not make objections or state-
ments which might suggest an answer to a (11) If a witness or his or her counsel is un-
witness. Counsels’ statements when making clear as to any question, he or she shall so
objections should be succinct and verbally advise counsel and permit the examining
economical, [**49] stating the basis of counsel an opportunity to rephrase or with-
the objection and nothing more. draw the witness’ question. [**51] Nei-
ther witness nor counsel shall make any com-
(5) Counsel and their witness/clients shall
ment or engage deposing counsel in an
not initiate or engage in private off-the-
argument (other than grounds therefore) about
record conferences during depositions or dur-
the nature of the question or the witness’ re-
ing breaks or recesses, except for the pur-
quest for clarification.
pose of deciding whether to assert a privilege.
(12) Examining counsel shall at no time inter-
(6) Any conferences which occur pursuant
rupt a witness while he or she is attempting
to, or in violation of, guideline (5) are a proper
to answer a question. Counsel shall await the
subject for inquiry by deposing counsel to as-
witness’ complete response to a question be-
certain whether there has been any witness
fore advancing any follow-up questions or
-coaching and, if so, what.
moving on to a new subject.(13) Examining
(7) Any conferences which occur pursuant counsel shall refrain from unnecessary on-the
to, or in violation of, guideline (5) shall be -record recitation or lengthy quotations

254
Keith Gorgos
 Page 14 of 14
228 F.R.D. 190, *205; 2005 U.S. Dist. LEXIS 17463, **51

from discovery materials or documents ex- F.R.D. 525 (E.D.Pa. 1993).

cept as is necessary to put specific questions
to the witness related to such material or
documents.(14) Authority: Fed.R.Civ.P. 16,
26(f), 30, 37(a); Hall v. Clifton Precision, 150

255
Keith Gorgos
Positive
As of: October 13, 2013 3:53 PM EDT

Winn v. AP
United States District Court for the Southern District of New York
November 1, 1995, Decided ; November 2, 1995, FILED
92 Civ. 6535 (JES)

Reporter: 903 F. Supp. 575; 1995 U.S. Dist. LEXIS 16339; 32 Fed. R. Serv. 3d (Callaghan) 1358
fendants interfered with any contractual relationships by
publishing allegedly defamatory statements, or that de-
GALE WINN, President of Miss Black Virginia Pageant, fendants were aware of or intended to interfere with the re-
Inc. and MISS BLACK VIRGINIA PAGEANT, INC., lationships. The court awarded monetary sanctions
Plaintiffs, -against- ASSOCIATED PRESS, and LOUIS against plaintiffs because they deliberately impeded the
BOCCARDI, President of Associated Press, 50 Rock- discovery process.
efeller Plaza, New York, New York, Defendants.
Outcome
The court granted summary judgment in favor of defen-
Core Terms dants in a libel, material misrepresentation, and tor-
tious interference with contract suit filed by plaintiffs con-
deposition, pre-trial, discovery, news report, contractual
relationship, cause of action, wire, attorney’s fees, cerning a published news article created by defendants.
district court, dissemination, newspaper, sponsors,
summary judgment motion, allegedly defamatory, LexisNexis® Headnotes
defamatory statement, plaintiff’s claim, monetary
sanctions, private plaintiff, broadcast, reputable, tortious, Civil Procedure > ... > Summary Judgments > Motions for Sum-
revised mary Judgment > General Overview
Civil Procedure > ... > Summary Judgments > Opposing Materi-
als > General Overview
Case Summary Civil Procedure > ... > Summary Judgments > Entitlement as Mat-
ter of Law > General Overview
Procedural Posture Civil Procedure > ... > Summary Judgments > Entitlement as Mat-
Plaintiffs, Pageant corporation and its president, and de- ter of Law > Genuine Disputes
Civil Procedure > ... > Summary Judgments > Entitlement as Mat-
fendants, wire news agency and its president, filed cross ter of Law > Materiality of Facts
-motions for summary judgment and for sanctions, in a li-
bel, material misrepresentation, and tortious interference HN1 On a motion for summary judgment, the moving
with contract suit filed by plaintiffs. The suit was party must demonstrate that there is no genuine issue as
based upon the publishing of an article by a local daily to any material fact and that they are entitled to a judg-
newspaper which was created by defendants. ment as a matter of law. Fed. R. Civ. P. 56(c). On the other
hand, a party opposing a motion for summary judg-
Overview ment must do more than simply show that there is some
The newspaper published an article containing direct quo- metaphysical doubt as to the material facts. In determin-
tations by contestants and sponsors concerning prob- ing whether a genuine issue of fact exists, a district court
lems surrounding a popular Virginia pageant. The corre- must resolve all ambiguities and draw all reasonable in-
spondent had acquired the news article from defendants. ferences against the moving party.
Plaintiffs filed a suit against defendants, asserting claims
of libel, material misrepresentation, and tortious interfer- Civil Procedure > ... > Jurisdiction > Diversity Jurisdic-
ence with contracts. Both parties filed motions for sum- tion > General Overview
mary judgment and sanctions. The court granted defen- Civil Procedure > ... > Subject Matter Jurisdiction > Jurisdiction
Over Actions > General Overview
dants’ motions, and held that the defamation claims failed, Civil Procedure > ... > Federal & State Interrelationships > Choice
because the claims were based upon statements not pub- of Law > General Overview
lished by the news agency, and under the wire de- Torts > Procedural Matters > Conflict of Law > General Overview
fense doctrine, the mere reiteration of a news article cre-
ated by the news agency and published by a recognizable HN2 Where subject matter jurisdiction is based upon di-
reliable source of daily news could not constitute defama- versity of citizenship, a district court must apply the
tion by endorsement. The tortious interference claim choice of law rules of the forum state. Under New York
was insufficient because there was no evidence that de- choice of law rules, the state with the most significant

256
Keith Gorgos
 Page 2 of 7
903 F. Supp. 575, *575; 1995 U.S. Dist. LEXIS 16339, **16339

relationship to an alleged tort supplies the governing sub- eral Overview

stantive law. Civil Procedure > Discovery & Disclosure > Discov-
ery > Misconduct During Discovery
Torts > Intentional Torts > Defamation > General Overview
Torts > ... > Defamation > Public Figures > Actual Malice HN7 The Federal Rules of Civil Procedure were de-
Torts > ... > Defamation > Public Figures > Voluntary Public Fig- signed to afford each party a full and fair opportunity to
ures conduct discovery necessary for trial preparation. A fed-
eral district court possesses broad inherent power to im-
HN3 So long as they do not impose liability without pose sanctions in response to abusive litigation prac-
fault, the states may define for themselves the appropri- tices, thereby ensuring the proper administration of justice.
ate standard of liability for a publisher or broadcaster Accordingly, pursuant to Fed. R. Civ. P. 37, if a party
of defamatory falsehood injurious to a private indi- fails to provide discovery or to obey a court order, a dis-
vidual. trict court may, inter alia, dismiss the action and re-
quire the payment of reasonable expenses, including attor-
Civil Procedure > Remedies > Damages > Punitive Damages ney’s fees.
Torts > ... > Types of Damages > Compensatory Damages > Gen-
eral Overview
Torts > ... > Types of Damages > Punitive Damages > General Over- Counsel: [**1] FRANSHONE WINN, ESQ., Attorney
view for Plaintiffs, Amityville, New York.
Torts > Intentional Torts > Defamation > General Overview
Torts > Intentional Torts > Defamation > Procedural Matters
Torts > ... > Defamation > Public Figures > Actual Malice
ROGERS & WELLS, Attorneys for Defendants, New
Torts > ... > Defamation > Public Figures > Clear & Convincing Evi- York, New York, MARGARET BLAIR SOYSTER, ESQ.,
dence DEBORAH R. SCHWARTZ, ESQ., Of Counsel.
Torts > ... > Defamation > Public Figures > Voluntary Public Fig-
ures Judges: John E. Sprizzo, United States District Judge
Torts > ... > Defamation > Remedies > Damages

HN4 Under the law of Virginia , a private plaintiff may re- Opinion by: John E. Sprizzo
cover actual, compensatory damages against a media de-
fendant upon demonstrating by a preponderance of Opinion
the evidence the negligent publication of a defamatory
statement. In order to recover presumed or punitive dam-
ages, a private plaintiff must demonstrate actual malice [*576] MEMORANDUM OPINION AND ORDER
by clear and convincing evidence.
SPRIZZO, D.J.,
Torts > Intentional Torts > Defamation > General Overview
The Miss Black Virginia Pageant, Inc. (the ″MBVP″)
HN5 Under the so-called wire defense doctrine, the and its President, Gale Winn (collectively ″plaintiffs″),
mere reiteration of a news article published by a recog- bring the instant action against the Associated Press (the
nizable reliable source of daily news cannot constitute ″AP″) and its President, Louis Boccardi (collectively
defamation by endorsement, unless the story was repro- ″defendants″), asserting claims of libel, material misrep-
duced in a negligent manner. As a general matter, most resentation and tortious interference with contracts. Pur-
modern publishers could not afford to verify the abso- suant to Rules 37 and 56 of the Federal Rules of Civil Pro-
lute authenticity of every news item, and continue to cedure, defendants move for summary judgment, as
promptly disseminate news of national or worldwide in- well as dismissal and the imposition of monetary sanc-
terest. Thus, the wire service defense is available tions based upon willful obstruction of discovery. Plain-
where a news organization reproduces an apparently ac- tiffs cross-move for summary judgment, as well as sanc-
curate article by a reputable publisher, without substan- tions.
tial change and without actual knowledge of its falsity.
BACKGROUND
Torts > ... > Commercial Interference > Contracts > General Over-
view
Founded by Gale Winn in 1985, the MBVP was estab-
HN6 Under the law of Virginia , a plaintiff may set lished to provide artistic, cultural and educational oppor-
forth a prima facie case of tortious interference with a con- tunities to children and young women in Virginia. Com-
tractual relationship by demonstrating the following: plaint P 3; Affidavit of Gale Winn Sworn to June 25, 1993
(1) a valid contractual relationship, (2) knowledge of the (″Winn Aff.″) [**2] P 1. To that end, the MBVP has
contractual relationship, (3) intentional interference sponsored the annual Miss Black Virginia and Future Miss
with the contractual relationship; and (4) damages result- Black Virginia pageants in Norfolk, Virginia. Defen-
ing therefrom. dants’ Statement Pursuant to Local Rule 3(g) dated Au-
gust 1, 1994 (″Deft. Rule 3(g) St.″) P 1. [*577] Since
Civil Procedure > Discovery & Disclosure > General Overview 1988, the two pageants have been televised by major af-
Civil Procedure > ... > Discovery > Methods of Discovery > Gen- filiate television stations in the State of Virginia. Com-

257
Keith Gorgos
 Page 3 of 7
903 F. Supp. 575, *577; 1995 U.S. Dist. LEXIS 16339, **2

plaint P 3. At all times pertinent to this action, Gale pared a news report concerning the MBVP controversy.
Winn was the president of the MBVP. Winn Aff. P 1. Id. P 10. In accordance with standard AP practice, the
news report was electronically transmitted to the AP’s
The AP, a not-for-profit news cooperative, is comprised Richmond Bureau for review and edit. Id.
of member newspapers, television stations and radio sta-
tions involved in the collection, distribution and overall That same day, Jean McNair Petkofsky, an experienced
exchange of news reports. Deft. Rule 3(g) St. PP 2, 5. In editor in the Richmond Bureau, reviewed the revised Vir-
some instances, the AP may acquire news reports ginian-Pilot article and concluded that ″the article ap-
through original reporting by AP staff members. Id. P 3. peared to be thoroughly researched and fairly pre-
However, the AP most commonly acquires published sented.″ Affidavit of Jean McNair Petkofsky Sworn to July
news reports from its members, rewrites and edits them 28, 1994 (″Petkofsky Aff.″) PP 2, 5. As a result, Petkof-
to some degree and then distributes them to its mem- sky made no substantive revisions to the articles origi-
bers. Id. In Virginia, the AP acquires approximately 70 nally prepared by Taylor. [**5] Id. P 5. Petkofsky ap-
percent of its news reports from its members and then dis- proved the articles for transmission over the state
seminates the information on its state wire. 1 Id. P 4. wire. Id.
At approximately 2:56 p.m., on August 7, 1992, the AP
[**3] The Virginian-Pilot, a morning newspaper, has disseminated the news report concerning the MBVP con-
been a member of the AP for many years. Deft. Rule 3(g) troversy on the state wire for morning newspaper mem-
St. P 10. In the past fifteen years, the AP’s Richmond Bu- bers. Deft. Rule 3(g) St. P 16; Taylor Aff. P 11, Exh.
reau has transmitted approximately 16,000 news re- B-1. At approximately 12:02 a.m., on August 8, 1992, the
ports, an average of three per day, based upon articles pub- AP retransmitted the identical news report on the state
lished by the Virginian-Pilot Id. P 11. Prior to the wire for afternoon newspaper members. Deft. Rule 3(g)
instant action, the AP had never received a complaint re- St. P 17; Taylor Aff. P 11, Exh. B-2. On August 7, 1992,
garding any story which had originated with the Virgin- the AP also disseminated two brief broadcast stories,
ian-Pilot. Id. based upon the revised news report, on the state broad-
cast wire to member radio and television stations. Deft.
On August 7, 1992, the Virginian-Pilot published an ar- Rule 3(g) St. P 18; Taylor Aff. P 11, Exhs. B-3 & B-4.
ticle entitled ″Miss Black Virginia 1991 Calls Pageant ’A Aside from a few omitted statements, to be discussed be-
Fraud’″ (the ″Virginia-Pilot article″). Deft. Rule 3(g) low, the two news reports and two broadcast stories
St. P 6; Affidavit of Joseph A. Taylor Sworn to July 28, were [*578] in substance, identical to the Virginian-
1994 (″Taylor Aff.″) P 8, Exh. A. The article, which con- Pilot article. 2 Taylor Aff. P 11.
tained many direct quotations by contestants and spon-
sors alike, addressed the problems and controversies [**6] On September 1, 1992, plaintiffs commenced the
surrounding the Miss Black Virginia and Future Miss instant action against the AP and its President, Louis
Black Virginia pageants. Taylor Aff. P 8, Exh. A. More Boccardi. 3 In their first cause of action, plaintiffs claim
specifically, the article described a deteriorating organiza- that defendants maliciously published twelve false and
tional structure within the MBVP and detailed alleged defamatory statements concerning the MBVP and Gale
failed promises concerning cash and prizes, as well as de- Winn. Complaint PP 1-10. In their second cause of ac-
clining participation and sponsorship. Id. In the article, tion, plaintiffs claim that defendants published two
Gale Winn [**4] responded to the allegations by label- other false and defamatory statements concerning Gale
ing the charges ″a malicious and slanderous attempt to Winn. Id. P 11. In their third cause of action, plaintiffs
sabotage the Miss Black Virginia Pageant.″ Id. claim that defendants made material misrepresenta-
tions concerning plaintiffs, which the public has relied
As the AP correspondent in Norfolk, Virginia, Joseph A. upon. Id. PP 12-16. In their fourth cause of action, plain-
Taylor acquires local news reports, often rewrites them tiffs allege that defendants tortiously interfered with
to some degree and transmits them to the AP’s Rich- plaintiffs’ unspecified contracts with reigning winners,
mond Bureau for state-wide dissemination. Taylor Aff. past winners and sponsors by publishing the allegedly de-
P 4. On the morning of August 7, 1992, Taylor read the famatory statements. Id. PP 17-20.
Virginian-Pilot article and concluded that it was ″thor-
oughly researched and fairly presented.″ Id. PP 8-9. Re- On May 27, 1993, defendants moved [**7] for partial
lying entirely on the Virginian-Pilot article, Taylor pre- summary judgment. By order dated October 14, 1993, the

1
The AP distributes news reports electronically on state wires, or with a story of national interest, on the national wire. Deft.
First Rule 3(g) St. P 3.
2
The AP did not transmit any other news reports concerning the MBVP or Gale Winn in August 1992. Deft. First Rule 3(g) St.
P 19. Moreover, the AP did not transmit any news reports concerning the MBVP over its national wire. Taylor Aff. P 11.
3
Although named in the complaint, plaintiffs have not alleged any separate wrongdoing by Boccardi other than as set forth
above.

258
Keith Gorgos
 Page 4 of 7
903 F. Supp. 575, *578; 1995 U.S. Dist. LEXIS 16339, **7

Court denied that motion for summary judgment. Defen- lished two defamatory statements concerning [*579]
dants now move for summary judgment on all issues, Gale Winn. Id. P 11. However, while each of these alleg-
as well as monetary sanctions based upon the willful ob- edly defamatory statements was contained in the Virgin-
struction of discovery. Plaintiffs cross-move for sum- ian-Pilot article, the AP did not publish, in words or
mary judgment, as well as sanctions. For the reasons that in substance, either the two statements concerning Gale
follow, defendants’ motions for summary judgment and Winn or six of the twelve statements concerning the
sanctions are granted. MBVP. As a result, the first cause of action should be
dismissed to the extent that it is based upon the six state-
DISCUSSION ments not published by the AP, and the second cause
of action should be dismissed in its entirety. The third
HN1 On a motion for summary judgment, the moving cause of action should also be dismissed to the extent that
party must demonstrate ″that there is no genuine issue as it is based upon any of these statements.
to any material fact and that [they are] entitled to a judg-
ment as a matter of law.″ Fed. R. Civ. P. 56(c). On In any event, the first, second and third causes of action
the other hand, a party opposing a motion for summary must be dismissed in their entirety. It is well-
judgment must ″do more than simply show that there is established that, HN3 ″so long as they do not impose li-
some metaphysical doubt as to the material facts.″ Mat- ability without fault, the States may define for them-
sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. selves the appropriate standard of liability for a publisher
574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In or broadcaster of defamatory falsehood [**10] injuri-
determining whether a genuine issue of fact exists, a dis- ous to a private individual.″ Gertz v. Robert Welch, Inc.,
trict court must resolve all ambiguities and draw all rea- 418 U.S. 323, 347, 41 L. Ed. 2d 789, 94 S. Ct. 2997
sonable inferences against the moving party. See Ander- (1974); cf. New York Times Co. v. Sullivan, 376 U.S. 254,
son v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 283, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) (applying ac-
2d 202, 106 S. Ct. 2505 (1986).I. CHOICE [**8] OF tual malice standard to public officials); Curtis Pub.
LAW Co. v. Butts, 388 U.S. 130, 155, 18 L. Ed. 2d 1094, 87
S. Ct. 1975 (1970) (applying actual malice standard to
HN2 Where, as here, subject matter jurisdiction is based public figures). HN4 Under the law of Virginia, a pri-
upon diversity of citizenship, 4 a district court must ap- vate plaintiff may recover actual, compensatory damages
ply the choice of law rules of the forum state. See Klaxon against a media defendant upon demonstrating by a pre-
Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97, ponderance of the evidence the negligent publication of a
85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Under New York defamatory statement. See Shenandoah Publishing
choice of law rules, the state with the most significant re- House, Inc. v. Gunter, 245 Va. 320, 427 S.E.2d 370, 372
lationship to an alleged tort supplies the governing sub- (Va. 1993); Gazette, Inc. v. Harris, 229 Va. 1, 325
stantive law. See Reeves v. American Broadcasting S.E.2d 713, 724-25 (Va.), cert. denied sub nom. Fleming
Cos., 719 F.2d 602, 605 (2d Cir. 1983) (citing Nader v. v. Moore, 472 U.S. 1032, 87 L. Ed. 2d 643, 105 S. Ct.
General Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 3513 (1985). In order to recover presumed or punitive
650-651, 255 N.E.2d 765 (1970)). In this case, because damages, a private plaintiff must demonstrate actual
plaintiffs are domiciled in Virginia and the causes of ac- malice by clear and convincing evidence. See Gertz, 418
tion arose there, the State of Virginia possesses the U.S. at 342. 5
most significant relationship to this action. See, e.g., Aro-
Chem Int’l, Inc. v. Buirkle, 968 F.2d 266, 269-270 (2d [**11] HN5
Cir. 1992) (recognizing that most significant contacts nor-
mally are domicile and locus of tort). As a result, the Under the so-called wire defense doctrine, initially enun-
Court will apply the substantive law of Virginia to the facts ciated in Layne v. Tribune Co., 108 Fla. 177, 146 So.
of this case. 234 (Fla. 1933) (en banc), the mere reiteration of a news
article published by a recognizable reliable source of
[**9] II. THE DEFAMATION CLAIMS daily news cannot constitute defamation by endorse-
ment, unless the story was reproduced in a negligent man-
ner. Layne, 146 So. at 238-39. As a general matter,
In their first cause of action, plaintiffs claim that defen- most modern publishers could not afford to verify the ab-
dants published twelve defamatory statements concern- solute authenticity of every news item, and continue to
ing the MBVP. Complaint PP 1-10. In their second promptly disseminate news of national or worldwide in-
cause of action, plaintiffs claim that defendants pub- terest. Id. at 188; see also Appleby v. Daily Hampshire

4
At the commencement of this action, the MBVP and Gale Winn were both citizens of the State of Virginia. Complaint P 1.
Based upon the pleadings and the record, it appears that the Associated Press and Louis Boccardi were both citizens of the State
of New York.
5
For purposes of this motion only, defendants concede that plaintiffs are merely private figures, although it appears that plain-
tiffs may well be limited purpose public figures, subject to the actual malice level of fault requirement. See Gertz, 418 U.S. at 351.

259
Keith Gorgos
 Page 5 of 7
903 F. Supp. 575, *579; 1995 U.S. Dist. LEXIS 16339, **11

Gazette, 395 Mass. 32, 478 N.E.2d 721, 725-26 (Mass. proved it for transmission on the state wire without any
1985) (verification would force smaller publishers to substantive revisions. Id. P 5. 6
cover only purely local events). Thus, the wire service
defense is available where, as here, a news organization re- [**14] Accordingly, the first, second and third causes
produces an apparently accurate article by a reputable of action must be dismissed in their entirety because plain-
publisher, without substantial change and without actual tiffs have failed to demonstrate that there is any basis
knowledge of its falsity. See Nelson v. Associated for a rational fact finder to conclude that defendants were
Press, Inc., 667 F. Supp. 1468, 1476-77 (S.D.Fla. 1987); negligent in publishing the allegedly defamatory state-
accord O’Brien v. Williamson Daily News, 735 F. ments.
Supp. 218, 225 (E.D.Ky. 1990), aff’d, 931 F.2d 893 (6th
Cir. 1991); Brown v. [**12] Courier Herald Pub. B. Tortious Interference with Contracts
Co., 700 F. Supp. 534, 537 (S.D.Ga. 1988); McKinney v.
Avery Journal, Inc., 99 N.C. App. 529, 393 S.E.2d In their fourth cause of action, plaintiffs claim that defen-
295, 297 (N.C. 1990). dants tortiously interfered with plaintiffs’ contracts
with reigning winners, past winners and sponsors by pub-
For example, in Holden v. Clary, 1992 U.S. Dist. LEXIS lishing the allegedly defamatory statements. Complaint
19951, 1992 WL 373145 (E.D.Va. 1992), as in this PP 17-20.
case, a private plaintiff sued the AP for compensatory
and punitive damages based upon the AP’s dissemina- HN6 Under the law of Virginia, a plaintiff may set forth
tion of an article originally published by a local newspa- a prima facie case of tortious interference with a con-
per. In Holden, the United States District Court for the tractual relationship by demonstrating the following: (1)
Eastern District of Virginia recognized that the local news- a valid contractual relationship, (2) knowledge of the
paper possessed a solid journalistic reputation, that the contractual relationship, (3) intentional interference with
article contained no internal inconsistencies, and that the the contractual relationship; and (4) damages resulting
AP had complied with all of its standard procedures con- therefrom. Century-21 v. Elder, 239 Va. 637, 391 S.E.2d
cerning revision and transmission. Holden, 1992 U.S. Dist. 296, 298 (Va. 1990) (citing Chaves v. Johnson, 230
LEXIS 19951, at *3, *13, 1992 WL 373145, at *1, 4. Va. 112, 335 S.E.2d 97, 102 (Va. 1985)). There is no evi-
The court then added that the AP and other news ser- dence that defendants interfered with any contractual re-
vices, which are responsible for the prompt and efficient lationships by publishing the allegedly defamatory
transmission of news, ″cannot be expected to research statements. [**15] Nor is there any evidence that Tay-
the minute details of every story that passes over their lor and Petkofsky were aware of any such contractual
wires, unless they have reason to delve further into a cer- relationships. Taylor Aff. P 10 n. 1; Petkofsky Aff. P 5 n.
tain article’s contents.″ Id. at *13. In [*580] the end, 1. There is also no evidence that either Taylor or Petkof-
the court held that the local newspaper was primarily re- sky intended to interfere with any such relationships.
sponsible, rather than the AP, which had demon- Taylor Aff. P 10 n. 1; Petkofsky Aff. P 5 n. 1.
strated [**13] ordinary care in preparing and transmit-
ting the article. Id. In any event, because the Court has concluded that defen-
dants did not act improperly in transmitting the informa-
In this case, there is no evidence that the AP was negli- tion for dissemination, it follows that its conduct in so
gent in publishing any of the allegedly defamatory state- doing cannot afford a rational basis for any alleged inter-
ments. In the past, when Taylor personally covered the ference with contractual relationships. Therefore, the
same event as the Virginian-Pilot, the ensuing article fourth cause of action must also be dismissed.
by that reputable newspaper had always accurately re-
flected the events witnessed by Taylor. Taylor Aff. P 6. III. SANCTIONS
Moreover, at the rewriting stage, Taylor concluded that the
Virginian-Pilot article was thoroughly researched, fairly Pursuant to Rule 37, defendants also move for dismissal
presented, neither improbable nor implausible and sug- and the imposition of monetary sanctions based upon
gested no factual errors warranting further investiga- plaintiffs’ willful obstruction of discovery. Since the Court
tion. Id. P 9. Similarly, Petkofsky was fully familiar with has concluded that plaintiffs’ claims must be dismissed
the strong journalistic reputation of the Virginian-Pilot on the merits, the Court need not reach the question of
during his fifteen years with the AP, including seven years whether the sanction of dismissal should be imposed
as the Norfolk correspondent. Petkofsky Aff. P 4. At based upon the misconduct alleged. However, for the rea-
the editing stage, Petkofsky likewise concluded that the ar- sons which follow, the Court concludes that the imposi-
ticle did not appear inaccurate in any respect and ap- tion of monetary sanctions is warranted.

6
While no AP staff member attended the Miss Black Virginia Pageant in 1992 and the AP did not communicate with Gale
Winn prior to publishing the news reports, Defendants’ Statement Pursuant to Local Rule 3(g) dated October 3, 1994 at 6, that
fact is legally irrelevant because to require such independent verification would subvert the policies underlying the wire defense doc-
trine.

260
Keith Gorgos
 Page 6 of 7
903 F. Supp. 575, *580; 1995 U.S. Dist. LEXIS 16339, **15

HN7 The Federal Rules of Civil Procedure were de- sult, the Court removed the three day limitation, allowed
signed to afford [**16] each party a full and fair oppor- the deposition to continue to completion ″however
tunity to conduct discovery necessary for trial prepara- long it takes,″ and warned that costs could be assessed
tion. See Nittolo v. Brand, 96 F.R.D. 672, 676 (S.D.N.Y. at the close of the case. 2/23/94 PTC Tr. at 3.
1983) (citing Cine Forty-Second St. Theatre Corp.
[*581] v. Allied Artists Pictures Corp., 602 F.2d 1062 On February 25, 1994, defendants for the third time re-
(2d Cir. 1979)). A federal district court possesses broad in- sumed the deposition of Gale Winn. Soyster Aff. P 11. At
herent power to impose sanctions in response to abu- the close of the second day of the deposition, however,
sive litigation practices, thereby ensuring the proper ad- Franshone Winn indicated that plaintiffs deemed the de-
ministration of justice. See National Hockey League v. position to be complete. Id. PP 12-13; Winn Dep. 612-
Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 49 L. 14. On March 8, 1994, the Court held a pre-trial confer-
Ed. 2d 747, 96 S. Ct. 2778 (1976) (per curiam). Accord- ence. At the pre-trial conference, the Court heard
ingly, pursuant to Fed. R. Civ. P. 37, if a party fails to testimony from both Soyster and Franshone Winn con-
provide discovery or to obey a court order, a district court cerning the matter. While under oath, Franshone Winn, in
may, inter alia, dismiss the action and require the pay- effect, denied that plaintiffs indicated that they deemed
ment of reasonable expenses, including attorney’s fees. the deposition to be complete at the close of the second
See Cine Forty-Second Theatre Corp., 602 F.2d at day, a claim that is refuted by the transcript of that de-
1066. position. Transcript of Pre-Trial Conference dated 3/8/94
(″3/8/94 [**19] PTC Tr.″) at 4, 17-18; Winn Dep. 612
In this case, six pre-trial conferences were required to en- -14. Although the deposition transcript was not then avail-
sure compliance by plaintiffs, who the Court finds have able, the Court did not find Winn’s testimony credible
deliberately impeded the discovery process. on that issue, reiterated that there were no time limita-
tions on the deposition and imposed the costs of the con-
The deposition of Gale Winn, for example, required an in- ference upon plaintiffs. 7 Id. at 19-20, 23, 26, 28.
ordinate amount of time, necessitated numerous pre-
trial conferences and generated limited factual informa- In addition, Gale Winn failed to cooperate by repeatedly
tion. [**17] The first deposition of Gale Winn, on providing uninformative responses at her deposition.
January 7, 1994, commenced almost two hours late be- For example, during the deposition conducted in Febru-
cause Gale Winn and her counsel arrived late. Affidavit of ary, Gale Winn did not recall who managed the finan-
Margaret Blair Soyster Sworn to July 29, 1994 (″Soyster cial affairs of the MBVP, what financial records were
Aff.″) P 5 Then, after overhearing a conversation con- maintained and where such records were located. Winn
cerning the case, plaintiffs abruptly terminated the first de- Dep. 143-191. At the pre-trial conference on March 8,
position. Id. P 5; Deposition of Gale Winn (″Winn 1994, the Court warned Gale Winn that claiming lack of
Dep.″) 59-60. By letter, defendants issued a formal apol- knowledge or recollection as to basic facts, clearly
ogy concerning any possible misunderstanding and re- within her knowledge, could [*582] result in a dis-
quested a rescheduling. Soyster Aff. P 6, Exh. A. Plain- missal. 3/8/94 PTC Tr. at 14-23.
tiffs ignored the request. Id. P 6. On January 21, 1994, the
Court held a pre-trial conference at which the Court di- On March 24, 1994, defendants resumed the deposition
rected Gale Winn to complete her deposition over a three of Gale [**20] Winn. Despite the warnings of the Court,
day period or face a dismissal with prejudice. Gale Winn did not recall numerous matters which she
surely should be expected to know. For example, Winn did
On February 23, 1994, defendants resumed the deposi- not recall, inter alia, the board of directors for the
tion of Gale Winn. Soyster Aff. P 8. However, Gale Winn MBVP in 1992, when the alleged defamation occurred,
insisted on writing out each question and proposed an- Winn Dep. at 827, the major sponsor which forwarded a
swer prior to issuing a verbal response. Id. P 8; Winn Dep. copy of the articles to Gale Winn and requested a con-
86-90. On February 23, 1994, the Court held another pre tractual release, id. at 973-76, any major sponsors of the
-trial conference. At that conference, Franshone Winn, MBVP in 1991-92, id. at 901, 911-12, 8 any sponsors
counsel for plaintiffs, advised the Court that Margaret who refused to perform their contractual obligations with
Blaire Soyster, counsel for defendants, did not express the MBVP and the contracts in relation thereto, id. at
[**18] any objections concerning the conduct of 1021, any prospective contestants or sponsors which re-
the deposition. Transcript of Pre-Trial Conference dated fused to conduct business with the MBVP, id. at 957-
February 23, 1994 (″2/23/94 PTC Tr.″) at 3. However, the 62, any individuals, other than Gale Winn, authorized to
deposition transcript indicates that Soyster unambigu- sign contractual agreements, id. at 979-81, any individu-
ously expressed her objections. Winn Dep. 86-90. As a re- als involved in the decision to cancel the pageants in 1993,

7
The Court concluded that the costs were approximately $ 380. 3/8/94 PTC Tr. at 28.
8
While Gale Winn, at some point, finally identified some major sponsors, that testimony was given only after she was shown
the 1992 MBVP journal by counsel for defendants, which identified those sponsors. Winn Dep. at 914.

261
Keith Gorgos
 Page 7 of 7
903 F. Supp. 575, *582; 1995 U.S. Dist. LEXIS 16339, **20

id. at 915, or the sources of the gross receipts of the counsel, Franshone Winn, for their repeated willful non-
MBVP, id. at 983. compliance with the discovery process.

[**21] In addition, plaintiffs failed to comply with docu- Defendants seek sanctions in three respects. First, defen-
ment discovery in accordance with an order of the dants seek attorneys’ fees in the amount of $ 3,800.00
Court. At the initial pre-trial conference on December 2, in connection with the six pre-trial conferences necessi-
1992, the Court ordered the parties to simultaneously ex- tated by plaintiffs’ misconduct. Soyster Aff. P 53. This fig-
change certain documents, including the articles underly- ure represents ten hours billed at an hourly rate of $
ing the instant action. Soyster Aff. P 28. Without any ad- 380.00 per hour. Id. Secondly, defendants seek attor-
vanced notice, however, Franshone Winn failed to neys’ fees and costs in the amount of $ 13,868.82 in
appear for the scheduled exchange of documents. Id. P [*583] connection with the deposition of Gale Winn. Id.
29. On March 31, 1993, the Court held a pre-trial confer- P 54. This figure represents one-third of the total of thirty
ence at which Winn failed to appear. Id. P 30. On -two hours billed at an hourly rate of $ 380.00 per
April 16, 1993, the Court held another pre-trial confer- hour and $ 5,446.45 in court reporter fees. Id. Finally, de-
ence. Id. PP 30-31. At that conference, the Court again di- fendants seek attorneys’ fees and costs in connection
rected plaintiffs to produce the specified documents. with the instant motion. Id. P 52. Plaintiffs have failed
Soyster Aff. P 31. On April 26, 1993, plaintiffs pro- to address the amount of sanctions or their financial abil-
duced a single document, which was not even an AP news ity to pay sanctions.
report. Id. P 32.
In its discretion, the Court therefore awards defendants
Nor was this plaintiffs’ only failure to produce docu- [**24] their attorneys’ fees incurred in connection with
ments as ordered by the Court. On January 21, 1994, the the numerous pre-trial conferences in the amount of $
Court held a pre-trial conference and directed plaintiffs 2,000.00 and attorneys’ fees and costs in connection with
to produce numerous documents within thirty days. Tran- the deposition of Gale Winn in the amount of $
script of Pre-Trial Conference dated 1/21/94 at 6-15. 10,000.00. In addition, the Court awards defendants attor-
Nonetheless, at her deposition on May 13, 1994, Gale neys’ fees and costs incurred in connection with the in-
Winn admitted that plaintiffs had not even [**22] at- stant motion in an amount to be determined. To that end,
tempted to locate numerous documents which were main- defendants are hereby directed to submit an affidavit, de-
tained by the MBVP, which had been requested by de- tailing their attorneys’ fees and costs in connection
fendants and which, in many instances, were directed to with the instant motion.
be produced by the Court. Soyster Aff. P 36; Winn
Dep. 906-09, 912-13, 930-32. CONCLUSION

On May 27, 1994, the Court held a pre-trial conference For the foregoing reasons, defendants’ motion for sum-
which coincided with the close of discovery. At that con- mary judgment and motion for sanctions shall be and
ference, Gale Winn repeatedly asserted that plaintiffs hereby are granted. Plaintiffs’ cross-motions are denied
had complied with all outstanding discovery requests. in their entirety. Defendants are hereby directed to sub-
Transcript of Pre-Trial Conference dated May 27, 1994 at mit a proposed order within the next thirty days. The
2, 5, 7. The Court again directed plaintiffs to produce Clerk of the Court is hereby directed to enter appropri-
all outstanding document requests within thirty days and ate judgment for defendants and close the above-cap-
warned that their failure to comply could result in dis- tioned action.
missal. Id. at 6, 9. Following that conference, plaintiffs
produced supplemental documents. Soyster Aff. P 41. 9 It is SO ORDERED.

Dated: New York, New York

In view of the foregoing, the Court concludes that the
aforesaid [**23] obstruction of discovery by plaintiffs November 1, 1995
and their counsel would be an adequate predicate for a dis-
missal with prejudice were not the case being dis- John E. Sprizzo
missed on other grounds. It follows that a monetary sanc-
tion should be imposed upon plaintiffs and their United States District Judge

9
At the time of the instant motion, plaintiffs still had not produced many documents which were maintained by the MBVP or
Gale Winn. Soyster Aff. PP 42-48.

262
Keith Gorgos
FEDERAL TRIAL PRACTICE

by

ALBERT J. MILLUS, JR., ESQ.

Hinman, Howard & Kattell LLP

Binghamton

263
264
 FEDERAL TRIAL PRACTICE

New York State Bar Association

Continuing Legal Education Program
Federal Court Primer

Albert J. Milius, Jr., Esq.

Hinman, Howard & Kattell, LLP

I. Introduction
A. Federal court versus state court trial practice generally
I. Trials are trials
2. Basic parameters are essentially the same in terms of strategy and ultimate
goals
3. Difference in formalities

II. Pretrial Submittals

A. State court
1. Few formal requirements
2. Varies from Judge to Judge
B. N.D.N.Y.
I. Fed. R. Civ. Proc. 26(a)(3):

3) Pretrial Disclosures.

(A) In General. In addition to the disclosures required by Rule 26(a)(l) and (2), a
party must provide to the other parties and promptly file the following information
about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of
each witness-separately identifying those the party expects to present and those it
may call if the need arises;

(ii) the designation of those witnesses whose testimony the party expects to
present by deposition and, if not taken stenographically, a transcript of the pertinent
parts of the deposition; and

(iii) an identification of each document or other exhibit, including summaries of

other evidence-separately identifying those items the party expects to offer and
those it may offer if the need arises.

(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise,
these disclosures must be made at least 30 days before trial. Within 14 days after
they are made, unless the court sets a different time, a party may serve and promptly
file a list of the following objections: any objections to the use under Rule 32(a) of a
deposition designated by another party under Rule 26(a)(3)(A)(ii); and any

265
 objection, together with the grounds for it, that may be made to the admissibility of
materials identified under Rule 26(a)(3)(A)(iii). An objection not so made-except
for one under Federal Rule of Evidence 402 or 403-is waived unless excused by
the court for good cause .

• (4) Form ofDisclosures. Unless the court orders otherwise, all disclosures under
Rule 26(a) must be in writing, signed, and served.

2. NDNY Uniform Pretrial Scheduling Order (excerpt- Attachment A).

III. Courtroom Technology

A. Attachment B

IV. Trial Procedure

A. Pretrial/Settlement Conference
1. Uniform Pretrial Scheduling Order ,-[9

2. Fed. R. Civ. Proc. 16:

(c) Attendance and Matters for Consideration at a Pretrial Conference.

(1) Attendance. A represented party must authorize at least one of its attorneys
to make stipulations and admissions about all matters that can reasonably be
anticipated for discussion at a pretrial conference. If appropriate, the court may
require that a party or its representative be present or reasonably available by
other means to consider possible settlement.
(2) Matters for Consideration. At any pretrial conference, the court may
consider and take appropriate action on the following matters:
(A) formulating and simplifying the issues, and eliminating frivolous claims
or defenses;
(B) amending the pleadings if necessary or desirable;
(C) obtaining admissions and stipulations about facts and documents to avoid
unnecessary proof, and ruling in advance on the admissibility of evidence;
(D) avoiding unnecessary proof and cumulative evidence, and limiting the use
of testimony under Federal Rule of Evidence 702;
(E) determining the appropriateness and timing of summary adjudication
under Rule 56;
(F) controlling and scheduling discovery, including orders affecting
disclosures and discovery under Rule 26 and Rules 29 through 37;
(G) identifying witnesses and documents, scheduling the filing and exchange
of any pretrial briefs, and setting dates for further conferences and for trial;
(H) referring matters to a magistrate judge or a master;
(I) settling the case and using special procedures to assist in resolving the
dispute when authorized by statute or local rule;
(J) determining the form and content of the pretrial order;
(K) disposing of pending motions;

266
2
 (L) adopting special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult
legal questions, or unusual proof problems;
(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim,
crossclaim, third-party claim, or particular issue;
(N) ordering the presentation of evidence early in the trial on a manageable
issue that might, on the evidence, be the basis for a judgment as a matter of law
under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(0) establishing a reasonable limit on the time allowed to present evidence;
and
(P) facilitating in other ways the just, speedy, and inexpensive disposition of
the action.

(d) Pretrial Orders. After any conference under this rule, the court should issue an
order reciting the action taken. This order controls the course of the action unless
the court modifies it.

(e) Final Pretrial Conference and Orders. The court may hold a final pretrial
conference to formulate a trial plan, including a plan to facilitate the admission of
evidence. The conference must be held as close to the start of trial as is
reasonable, and must be attended by at least one attorney who will conduct the
trial for each party and by any unrepresented party. The court may modify an
order issued after a final pretrial conference only to prevent manifest injustice.

B. Jury Selection
1. N.D.N.Y. General Order 24 ("Jury Plan for the Random Selection of
Grand and Petit Jurors")(Attachment C)
2. Local Rules 47.1 - 51.1 (Attachment D)
3. Handbook For Trials Jurors Serving in the United States District Courts
(published by Administrative Office of the United States
Courts)(Attachment E)
4. Individual Judge's Practices- Vary
a. Judge MeAvoy
b. Judge Mordue
c. Magistrate Judge Peebles
d. Judge Munson (for historical perspective)
5. Important to discuss with Judge beforehand
6. Challenges

Fed. R. Civ. Proc: 47. Selecting Jurors

(a) Examining Jurors. The court may permit the parties or their attorneys
to examine prospective jurors or may itself do so. If the court examines the
jurors, it must permit the parties or their attorneys to make any further
inquiry it considers proper, or must itself ask any of their additional

267
3
 questions it considers proper.

(b) Peremptory Challenges. The court must allow the number of

peremptory challenges provided by 28 U.S.C. § 1870.

(c) Excusing a Juror. During trial or deliberation, the court may excuse a
juror for good cause.

28 U.S.C. §1870:

§ 1870. Challenges

In civil cases, each party shall be entitled to three peremptory challenges.

Several defendants or several plaintiffs may be considered as a single
party for the purposes of making challenges, or the court may allow
additional peremptory challenges and permit them to be exercised
separately or jointly.

All challenges for cause or favor, whether to the array or panel or to

individual jurors, shall be determined by the court.

C. Opening Statements
1. Local Rule 39.1: "The Court will determine the time to be allotted for
opening and closing arguments."
a. Order of opening statements

D. Proof
1. Plaintiffs case
2. Defendant's case
3. Rebuttal

E. Closing Statements
1. Local Rule 39.1: "The Court will determine the time to be allotted for
opening and closing arguments."
2. Order of closing statements
1. Civil cases
a. Judge MeAvoy
b. Magistrate Judge Peebles
2. Criminal cases

F. Jury Instructions
1. Pretrial submittal
2. Charge conference

268
4
 G. Jury Deliberations

H. Post-Trial Submittals in Non-Jury Trials

I. Post-Trial Contact with Jurors

1. Immediately after trial
2. Thereafter
a. Local Rule 47.5:

47.5 Jury Contact Prohibition

The following rules apply in connection with contact between attorneys or
parties and jurors.
1. At any time after the Court has called a jury panel from which jurors
shall be selected to try cases
for a term of Court fixed by the presiding judge or otherwise impaneled,
no party or attorney, or
anyone associated with the party or the attorney, shall have any
communication or contact by any
means or manner with any juror until such time as the panel of jurors has
been excused and the
term of court ended.
2. This prohibition is designed to prevent all unauthorized contact between
attorneys or parties and
jurors and does not apply when authorized by the judge while court is in
session or when otherwise
authorized by the presiding judge.

b. Cf:

Finally, the court "has the power, and sometimes the duty," to order that post-verdict questioning
of the jury be under its supervision. United States v. Moten, 582 F.2d 654, 665 (2d Cir. 1978). At
a minimum, notice to the court and opposing counsel is required before any such inquiries may
be made. Id. at 665-66. Such court supervision is particularly required where the jury is
anonymous. See United States v. Ianniello, 866 F.2d 540, 544 (2d Cir. 1989).

It makes llo difference that the three jurors contacted the defendant's attorney. As the Second
Circuit has observed: Human nature is such that some jurors, instead of feeling harassed by post-
trial interviewing, might rather enjoy it, particularly when it involves the disclosure of secrets or
provides an opportunity to express misgivings and lingering doubts. A serious danger exists that,
in the absence of supervision by the court, some jurors, especially those who were unenthusiastic
about the verdict or have grievances against fellow jurors, would be led into imagining sinister
happenings which simply did not occur or into saying things which, although inadmissible,
would be included in motion papers and would serve only to decrease public confidence in
verdicts. Moten, 582 F.2d at 665.

The communication and discussion with the three jurors by Schwarz's attorney about their

269
5
deliberations without prior notice to the court and opposing counsel was improper. As a result,
on July 14, 1999 the court issued an order prohibiting any further contact with jurors by any
defendant without first obtaining authorization of the court.

The sanctity of jury deliberations is a "basic tenet of our system of criminal justice." United
States v. Abcasis, 811 F. Supp. 828, 832 (E.D.N.Y. 1992). Courts thus admit post-verdict
evidence of a jury's deliberations only with "great caution." Mattox v. United States, 146 U.S.
140, 148, 13 S. Ct. 50, 52, 36 L. Ed. 917 (1892).

The Second Circuit has warned of the following "evil consequences" of post-verdict inquiries:
"subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with
meritless applications, increasing temptation for jury tampering and creating uncertainty in jury
verdicts." Ianniello, 866 F.2d at 543.

To protect the sanctity and finality of jury verdicts the movant must show just cause why a post-
verdict inquiry is necessary.

United States v. Volpe, 62 F. Supp. 2d 887., 892-893 (E.D.N.Y. 1999)

One reason given by the district court below for declining to hold an evidentiary hearing was its
view that, notwithstanding the fact that the jurors initiated the contact with Schwarz's attorney,
Schwarz's attorney had acted improperly in discussing the case with the jurors without first
giving notice to the court and opposing counsel. See Volpe, 62 F. Supp. 2d at 892. We have long
recognized that the proper functioning of the jury system requires that the courts protect jurors
from being 'harassed and beset by the defeated party in an effort to secure from them evidence of
facts which might establish misconduct sufficient to set aside a verdict.'" Moten, 582 F.2d at 664
(quoting McDonald v. Pless, 238 U.S. 264, 267, 59 L. Ed. 1300, 35 S. Ct. 783 (1915)); see also
United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961). As the court in Moten observed:
Human nature is such that some jurors, instead of feeling harassed by post-trial interviewing,
might rather enjoy it, particularly when it involves the disclosure of secrets or provides an
opportunity to express misgivings and lingering doubts. A serious danger exists that, in the
absence of supervision by the court, some jurors, especially those who were unenthusiastic about
the verdict or have grievances against fellow jurors, would be led into imagining sinister
happenings which simply did not occur or into saying things which, although inadmissible,
would be included in motion papers and would serve only to decrease public confidence in
verdicts. Moten, 582 F.2d at 665. In light of these concerns, HN14we have established the
requirement that "at a minimum, ... notice to opposing counsel and the court should be given in
all cases" before engaging in any post-verdict inquiry of jurors. Id. 582 F.2d at 665-66; see also
United States v. Brasco, 516 F.2d 816, 819 n.4 (2d Cir. 1975) ("Post-trial questioning of jurors
must only be conducted under the strict supervision and control of the court .... " (internal
quotation marks omitted)).

United States v. Schwarz, 283 F.3d 76, 97-98 (2d Cir. N.Y. 2002)

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V. Federal Rules ofEvidence (+/- 70 Rules):

FEDERAL RULES OF EVIDENCE

(As amended to December 1, 2011)

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope; Definitions

Rule 102. Purpose
Rule 103. Rulings on Evidence
Rule 104. Preliminary Questions
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Rule 106. Remainder of or Related Writings or Recorded Statements

ARTICLE II. JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts

ARTICLE Ill. PRESUMPTIONS IN CIVIL CASES

Rule 301. Presumptions in Civil Cases Generally
Rule 302. Applying State Law to Presumptions in Civil Cases

ARTICLE IV. RELEVANCE AND ITS LIMITS

Rule 401. Test for Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons
Rule 404. Character Evidence; Crimes or Other Acts
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures
Rule 408. Compromise Offers and Negotiations
Rule 409. Offers to Pay Medical and Similar Expenses
Rule 410. Pleas, Plea Discussions, and Related Statements
Rule 411. Liability Insurance
Rule 412. Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition
Rule 413. Similar Crimes in Sexual-Assault Cases
Rule 414. Similar Crimes in Child Molestation Cases
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

ARTICLE V. PRIVILEGES
Rule 501. Privilege in General
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

ARTICLE VI. WITNESSES

Rule 601. Competency to Testify in General

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Rule 602. Need for Personal Knowledge
Rule 603. Oath or Affirmation to Testify Truthfully
Rule 604. Interpreter
Rule 605. Judge's Competency as a Witness
Rule 606. Juror's Competency as a Witness
Rule 607. Who May Impeach a Witness
Rule 608. A Witness's Character for Truthfulness or Untruthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612. Writing Used to Refresh a Witness's Memory
Rule 613. Witness's Prior Statement
Rule 614. Court's Calling or Examining a Witness
Rule 615. Excluding Witnesses

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Expert Witnesses
Rule 703. Bases of an Expert's Opinion Testimony
Rule 704. Opinion on an Ultimate Issue
Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion
Rule 706. Court-Appointed Expert Witnesses

ARTICLE VIII. HEARSAY

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802. The Rule Against Hearsay
Rule 803. Exceptions to the Rule Against Hearsay- Regardless of Whether the Declarant Is
Available as a Witness
Rule 804. Hearsay Exceptions; Declarant Unavailable
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting the Declarant's Credibility
Rule 807. Residual Exception

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule 901. Authenticating or Identifying Evidence
Rule 902. Evidence That Is Self-Authenticating
Rule 903. Subscribing Witness's Testimony

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions That Apply to This Article
Rule 1002. Requirement ofthe Original
Rule 1003. Admissibility of Duplicates
Rule 1004. AdmissibilitY of Other Evidence of Content
Rule 1005. Copies of Public Records to Prove Content
Rule 1006. Summaries to Prove Content
Rule 1007. Testimony or Statement of a Party to Prove Content

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Rule 1008. Functions of the Court and Jury

ARTICLE XI. MISCELLANEOUS RULES

Rule 11 01. Applicability of the Rules
Rule 1102. Amendments
Rule 1103. Title

B. Particular Rules

1. Relevance and Prejudice

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides

otherwise:

• the United States Constitution;

• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste

of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.

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NOTE: Much relevant evidence is prejudicial.

The task of assessing potential prejudice is one for which the trial
judge, considering his familiarity with the full array of evidence in
a case, is particularly suited. As noted in the Advisory Committee's
commentary on Rule 403, "situations in this area call for balancing
the probative value of and need for the evidence against the harm
likely to result from its admission." The practical problems
inherent in this balancing of intangibles -- of probative worth
against the danger of prejudice or confusion -- call for the vesting
of a generous measure of discretion in the trial judge. n16 Were we
sitting as the trial judge in this case, we might well have concluded
that the potentially prejudicial nature of the evidence of profits
outweighed its probative worth. However, we cannot say that the
trial judge abused his discretion in reaching the contrary
conclusion.

Construction, Ltd. v. Brooks-Skinner Bldg. Co., 488 F.2d 427,431

(3d Cir. N.J. 1973)

The phrasing of Rule 403 comports also with the traditional

understanding, recognized by this court, that the weighing of
probative value and prejudicial effect is a matter generally left
within the wide, and wise, discretion of the trial court. United
States v. Harvey, 526 F.2d 529, 536 (2d Cir. 1975), cert. denied,
424 U.S. 956, 96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976); United
States v. Ravich, supra, 421 F.2d at 1204-05. Here, however, we
hold that the admission of the evidence constituted serious and
reversible error. The testimony regarding the.38 established only a
very weak inference at best that appellant was one of the bank
robbers; it was likely to have had a significant prejudicial impact
on the minds of the jurors; and, in the circumstances of this
exceedingly close case, may be treated as sufficiently affecting the
verdict that its admission requires reversal.

United States v. Robinson, 544 F.2d 611, 616 (2nd Cir. 1976)

Evidence is unduly prejudicial if it creates a genuine risk that the

emotions of the jury will be excited to irrational behavior, and the
risk is disproportionate to the probative value of the offered
evidence

United States v. Loughry, 660 F.3d 965, 974 (7th Cir. Ind. 2011)

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 Cf "nuke him and go direct" e-mail

2. Hearsay

Rule 801. Definitions That Apply to This Article; Exclusions from

Hearsay

(a) Statement. "Statement" means a person's oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. "Declarant" means the person who made the statement.

(c) Hearsay. "Hearsay" means a statement that:

( 1) the declarant does not make while testifying at the current trial or
hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in
the statement.

(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
(l)A Declarant-Witness's Prior Statement. The declarant testifies and is
subject to cross examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
(B) is consistent with the declarant's testimony and is offered to rebut
an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party's Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a
statement on the subject;
(D) was made by the party's agent or employee on a matter within the
scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of
the conspiracy.
The statement must be considered but does not by itself establish the
declarant's authority under (C); the existence or scope ofthe relationship
under (D); or the existence of the conspiracy or participation in it under
(E).

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 Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides

otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the

Declarant Is Available as a Witness [Caution: For amendments effective
December 1, 2013, see prospective amendment note to this rule.]

The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an
event or condition, made while or immediately after the declarant perceived
it.
(2) Excited Utterance. A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that
it caused.·
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement
of the declarant's then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory, or physical condition (such as mental feeling,
pain, or bodily health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the validity or
terms of the declarant's will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement
that:
(A) is made for--and is reasonably pertinent to--medical diagnosis or
treatment; and
(B) describes medical history; past or present symptoms or sensations;
their inception; or their general cause.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in
the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as
an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event,
condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information
transmitted by--someone with knowiedge;

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 (B) the record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances
of preparation indicate a lack of trustworthiness.
(7) Absence of a Record ofa Regularly Conducted Activity. Evidence that
a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or
exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source ofthe information nor other
circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-enforcement
personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a
lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or
marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony--or a certification under Rule
902--that a diligent search failed to disclose a public record or statement if
the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind.
(11) Records of Religious Organizations Concerning Personal or Family
History. A statement ofbirth, legitimacy, ancestry, marriage, divorce,
death, relationship by blood or marriage, or similar facts of personal or
family history, contained in a regularly kept record of a religious
organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A
statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or
by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony
or administered a sacrament; and_
(C) purporting to have been issued at the time of the act or within a
reasonabie time after it.

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13
 (13) Family Records. A statement of fact about personal or family history
contained in a family record, such as a Bible, genealogy, chart, engraving
on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(14) Records ofDocuments That Affect an Interest in Property. The
record of a document that purports to establish or affect an interest in
property if:
(A) the record is admitted to prove the content of the original recorded
document, along with its signing and its delivery by each person who
purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A
statement contained in a document that purports to establish or affect an
interest in property if the matter stated was relevant to the document's
purpose--unless later dealings with the property are inconsistent with the
truth of the statement or the purport ofthe document.
(16) Statements in Ancient Documents. A statement in a document that is
at least 20 years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market
quotations, lists, directories, or other compilations that are generally relied
on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A
statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-
examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's
admission or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as
an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation
among a person's family by blood, adoption, or marriage--or among a
person's associates or in the community--concerning the person's birth,
adoption, legitimacy, ancestry, marriage, divorce, death, relationship by
blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation
in a community--arising before the controversy--concerning boundaries of
land in the community or customs that affect the land, or concerning
general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person's
associates or in the community concerning the person's character.
(22) Judgment ofa Previous Conviction. Evidence of a final judgment of
conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo
contendere plea;
(B) the conviction was for a crime punishable by death or by
imprisonment for more than a year;

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 (C) the evidence is admitted to prove any fact essential to the judgment;
and
(D) when offered by the prosecutor in a criminal case for a purpose
other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect
admissibility.
(23) Judgments Involving Personal, Family, or General History, or a
Boundary. A judgment that is admitted to prove a matter of personal,
family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.

D. Raising evidentiary issues

1. Pretrial motions in limine
2. For the first time during presentation of evidence
a. E.g., hearsay objections
3. By written submission during trial

VI. Daubert and Kuhmo Tire (Attachment F)

Daubert Turning 20: Junk Science Replaced By Junk Rulings?

http://www.americanbar.org/content/dam/abaladministrative/litigation/materials/sac_2012/18-
2_ daubert_turning.authcheckdam.pdf

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ATTACHMENT A

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

HONORABLELAWRENCEE.KAHN

UNIFORM PRETRIAL SCHEDULING ORDER

IRINA KOSLESNIK

vs. Civil No. 3:13-CV-519

UNITED AIRLINES, INC., ET AL

Counsel for all parties having reported on the status of this action as directed by the
Court, and the Court having considered the positions of the respective counsel regarding
a schedule for the progression of the case,

IT IS ORDERED that:

1 ) THE DEADLINES SET IN THIS SCHEDULING ORDER SUPERSEDE THE

DEADLINES SET FORTH IN FED. R. CIV. P.26(a)(3) AND ARE FIRM AND
WILL NOT BE EXTENDED, EVEN BY STIPULATION OF THE PARTIES,
ABSENT GOOD CAUSE. See Fed. R. Civ. P. 16(b).

2) VENUE MOTIONS are to be filed within sixty (60) days of the date of this Order
following the procedures set forth in Local Rule 7.1 (b )2 and are to be made returnable
before the assigned Magistrate Judge.

3) JURISDICTION MOTIONS are to be filed within sixty (60) days of the date of
this Order following the procedures set forth in Local Rule 7.1 (b) 1 (unless a party who
is not an attorney is appearing pro se, in which case L.R. 7.1 (b)2 should be followed)
and are to be made returnable before the assigned District Judge.

4) JOINDER OF PARTIES: Any application to join any person as a party to this

action shall be made on or before OCTOBER 31, 2013.

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 Case 3:13-cv-00519-LEK-DEP Document 10 Filed 06/21/13 Page 4 of 23

b) DISPOSITIVE MOTIONS.

Dispositive motions shall be made returnable before the assigned District Judge
unless the case has been assigned to a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

8) TRIAL DATES:

a) If no dispositive motions are filed by the date set in paragraph 7 above, the case
will be marked trial ready and counsel and the parties should be prepared to proceed to
trial as of that date. Otherwise, the case will be marked trial ready as of MAY 30,2014.

It is anticipated that the trial will take approximately~ day(s) to complete.

b) Trial is scheduled for JUNE 3, 2014, at 9:30 a.m.,

at the Federal Courthouse in ALBANY, New York.

This is a JURY trial.

Trial dates are firm unless changed by the assigned Magistrate Judge or District
Judge. Counsel and the parties are advised that the trial date may be moved up in
accordance with 8(a) above. The unavailability of any witness, expert or otherwise, will
not be grounds for a continuance. In order to avoid the possibility of going forward with
the trial without the testimony of an unavailable witness, counsel, where appropriate,
shall preserve same before the trial ready date by written or video-taped deposition for
possible use at trial.

Counsel are directed to report to the trial judge's chambers at least one-half hour
prior to trial commencement to discuss jury selection and any other issues related to
trial.

9) SETTLEMENT CONFERENCE: A settlement conference pursuantto Fed. R. Civ.

P. 16(d) will be scheduled by the Court prior to the trial or as requested by the parties.
In addition to counsel, a representative of each party with settlement authority shall
attend the settlement conference or be available by telephone.

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 Case 3:13-cv-00519-LEK-DEP Document 10 Filed 06/21/13 Page 5 of 23

Prior to the settlement conference the parties are to have initiated settlement
discussions. Plaintiff shall submit a realistic demand to defendant at least ten days
before the conference, and defendant shall respond at least three days before the
conference and shall submit a counteroffer, if appropriate. Failure to comply with these
directions may result in sanctions.

10) ASSESSMENT OF JUROR COSTS: The parties are advised that pursuant to
Local Rule 47 .3, whenever any civil action scheduled for a jury trial is postponed,
settled, or otherwise disposed of in advance of the actual trial, then, except for good
cause shown, all juror costs, including Marshal's fees, mileage, and per diem, shall be
assessed against the parties and/or their counsel as directed by the Court, unless the
Court and the Clerk's Office are notified at least one full business day prior to the day
on which the action is scheduled for trial in time to advise the jurors that it will be
unnecessary for them to attend.

11) PRETRIAL SUBMISSIONS

Mandatory Fed. R. Civ. P. 26(a)(3) Disclosures (Jury and Non-Jury Cases)

i) Not later than thirty days before the Trial Ready Date (as defined in
paragraph 8(a) above) counsel shall provide to all other parties and file with the Court
in duplicate the disclosures required under Fed. R. Civ. P. 26(a)(3).

Those initial pretrial disclosures must include the following:

a) The name and, if not previously provided, the address and telephone
number of each witness, separately identifying those whom the party expects to present
and those whom the party may call if the need arises;

b) The designation of those witnesses whose testimony is expected to

be presented by means of a deposition (including video-taped deposition), specifically
identifying the pertinent portions of the deposition testimony to be offered; and

c) An identification of each document or other exhibit, including

summaries of other evidence, separately identifying those which the party expects to

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offer and those which the party may offer if the need arises.

ii) Within fourteen days after service of the Rule 26(a)(3) initial pretrial
disclosures, any party served with such Rule 26(a)(3) disclosures shall serve and file
with the court in duplicate a list of any objections to the proposed use of deposition
testimony designated by another party and objections to the admissibility of exhibits
described in the initial disclosures, together with a summary of the grounds for
objection.

Note: All objections not disclosed in a timely manner in accordance with

this rule, other than objections under Fed. R. Evid. 402 and 403, are
waived unless excused by the Court for good cause.

iii) Non-Jury Trials: One week before the Trial Ready Date counsel shall
submit to the Clerk's Office their joint pretrial stipulation in duplicate (see
subparagraph A below) and all depositions (including video-taped depositions) to be
used at trial (see subparagraph D below). In addition to this and the required mandatory
pretrial disclosures referenced above (i.e., witness, deposition excerpt, and exhibit lists),
one week before the Trial Ready Date counsel for each party shall submit to the
Clerk's Office in duplicate, with a copy to opposing counsel, (1) prepared findings of
fact and conclusions of law; (2) a letter brief concerning any evidentiary issues (see
subparagraph C below); and (3) a trial brief (see subparagraph E below).

iv) Jury Trials: One week before the Trial Ready Date counsel shall submit
to the Clerk's Office their joint pretrial stipulation in duplicate (see subparagraph A
below) and all depositions (including video-taped depositions) to be used at trial (see
subparagraph D below). In addition, one week before the Trial Ready Date counsel
for each party shall submit to the Clerk's Office in duplicate, with a copy to opposing
counsel, (1) Court Ordered Voir Dire (attachment# 1); (2) proposed voir dire; (3) a letter
brief concerning any evidentiary issues (see subparagraph C below; (4) a trial brief (see
subparagraph E below); and (5) requests to charge, including a proposed Special Verdict
Questionnaire (see subparagraph F below).

(A) PRETRIAL STIPULATIONS: A joint pretrial stipulation shall be subscribed

by counsel for all parties and shall be filed with the Clerk's Office in duplicate one
week before the Trial Ready Date and shall contain:

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(1) The basis of federal jurisdiction;

(2) A list of all exhibits which can be stipulated into evidence or which will
be offered without objection as to foundation;

(3) Relevant (a) facts not in dispute, (b) facts in dispute, and (c) issues of
law to be considered and applied by the Court.

(B) EXHIBITS: All exhibits shall be marked for identification in the manner
prescribed below prior to the filing of the trial briefs. Two complete sets of copies of
the exhibits, along with the original and two copies of the exhibit list (see
subparagraph 1 below), shall be presented to the Judge's Courtroom Deputy Clerk at
the beginning of the trial.

The exhibits shall have been inspected by the opposing party and copied at
their expense (unless waived) NO LATER THAN ONE WEEK PRIOR TO THE
TRIAL READY DATE. All documents and/or papers intended as exhibits or to be
used during the course of trial, including but not limited to documents, photographs,
charts, diagrams, etc., shall be assembled in BINDERS with each document properly
marked at the lower right comer for identification purposes as directed below. In
voluminous cases, consult with the Judge's Courtroom Deputy Clerk for the proper
procedure to follow.

*NOTE: During the course of trial the Courtroom Deputy Clerk shall
take charge of exhibits which are received into evidence. At the conclusion of
the trial, the Deputy Clerk will immediately return all of the exhibits to the
proper parties. It is the responsibility of the parties to maintain the exhibits and
to produce the exhibits for any appeal.

(1) EXHIBIT LISTS: The exhibits shall be listed on the form prescribed by
the Court, a copy of which is attached to this Order. Counsel are to supply all the
requested information with the exception of the two "Date Boxes" which should
remain blank. The original and two copies of the exhibit list shall be given to the
Judge's Courtroom Deputy Clerk along with the exhibits at the beginning of the trial.

(2) EXHIBIT MARKERS: Counsel shall fill in the appropriate markers

leaving the "File" and "Deputy Clerk" lines blank. All exhibits shall

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be assigned numbers by using a prefix of "P" for plaintiff, "D" for defendant, and
"G" for Government (U.S. Attorney).

Plaintiffs exhibits should be denoted as: P-1, P-2, P-3, etc. Defendant's exhibits
should be denoted as: D-1, D-2, D-3, etc. Government's exhibits should be denoted
as: G-1, G-2, G-3, etc. In cases involving multiple defendants, the exhibits shall be
denoted with the initial of the last name of the defendant and its numerical
identification number.

Stickers shall be affixed whenever possible to the lower right-hand comer of the
exhibit. If the exhibit marker is going to cover any information on the exhibit, then
affix the marker to the reverse side of the exhibit. Each exhibit shall also have an
exhibit number in the upper right hand comer of the exhibit. (P-1, P-2, etc. or D-1,
D-2, etc.)

(C) EVIDENTIARY ISSUES (Motions in Limine): One week before the Trial
Ready Date counsel shall file with the Clerk's Office, in duplicate, with a copy to
opposing counsel, a letter brief containing a concise statement of any and all
evidentiary issues to be presented upon trial, citing the applicable rules of evidence
and case law.

(D) DEPOSITIONS: All depositions (including video-taped depositions) to be used

at trial shall be filed with the Clerk's Office at least one week before the Trial
Ready Date. Not earlier than one week and not less than four days prior to the Trial
Ready Date, each party shall indicate to the other party the portion of the deposition
to be offered. To the extent possible, objections are to be resolved between the
parties. Areas of unresolved disagreement shall be presented to the Court for ruling
prior to the Trial Ready Date. (See attached instruction sheet for use of video-taped
depositions.)

(E) TRIAL BRIEFS: One week before the Trial Ready Date counsel shall file
with the Clerk's Office in duplicate, with a copy to opposing counsel a trial brief
containing argument and citations on any and all disputed issues of law, citing the
applicable rules of evidence and case law.

(F) REQUESTS TO CHARGE: One week before the Trial Ready Date, counsel
shall file with the Clerk's Office a request to charge and a proposed Special Verdict

8
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 Case 3:13-cv-00519-LEK-DEP Document 10 Filed 06/21/13 Page 9 of 23

Questionnaire on a 3.5-inch computer disk, preferably in WordPerfect format, and on

paper in duplicate, with a copy to opposing counsel. The request to charge need only
include instructions that are specific to the law in this case regarding liability,
damages, and any unusual issues. The Court has the usual boilerplate charge.

(G) Alternate Dispute Resolution:

This action has been : x designated for, participation in the district's ADR program.

The court has discussed the available ADR options with the parties and they
have elected to participate in:

X Mediation;

Within 10 days of the issuance of this Order, the parties are directed to confer
and select a neutral of their choice from a list of Court approved neutrals. This list
can be found on the Court's web page at http://www.nvnd.uscourts.gov/adr.htm. The
parties shall contact the agreed upon neutral, ensure that the neutral does not have a
conflict with any of the parties in the case and schedule a time to conduct the
proceeding.
After the parties have selected a neutral, they are directed to execute a stipulation
setting forth the name of the agreed upon neutral and file the stipulation with the
Court's ADR Administrator. A form stipulation selecting a neutral can be found at the
Court's web page at http://www.nvnd.uscourts.gov/pdf/adr/adrstip.pdf.
The stipulation should be forwarded to:

Suzanne Gunter- ADR Administrator

U.S. District Court for the Northern District of New York
James T. Foley U.S. Courthouse
445 Broadway, Room 509
Albany, NY 12207-2936

If the parties cannot agree on a neutral, they are directed to contact the ADR
Administrator who will appoint one from the list of Court approved neutrals. The ADR
Administrator can be reached at 518-257-1807. Failure to select a neutral or contact
the ADR Administrator within the time frame allotted may result in disciplinary action.

9
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ATTACHMENT B

288
Courtroom Technology I Northern District ofNew York I United States District Court Page 1 of2

Text Size:

UNITED STATES DISTRICT COURT

Northern District of New York

Han. Gary L. Sharpe, Chief Judge I Lawrence K. Baerman, Clerk of Court
jsean:;hthis site

Home About the Court Attorney Pro Se/Self I Jury Info Training External
Court Information Information I Representation Links

Home »Attorney Information

Attorney Admissions
Attorney Admission FAQ

Attorney Lookup
Courtroom Technology
The Audio and Visual means of presentation in the Courtroom increase both efficieny as well as juror
Biennial Registration comprehension. With minimal effort attorneys can present documents, photos, objects, videos, as well as electronic
presentations to bring details to the jurors. The Podium/Cart serves as the central station for the Attorney to access
Criminal Justice Act and present information in a variety of different ways. It allows mobility throughout the courtroom for presenb'ng
detailed informab'on. Laptop inputs are available at the podium and at all counsel tables.
CJA Attorney Application

Current Mileage Rate

Available Equipment
Federal Criminal· Defense Practice Seminar
Below is a list of equipment available in a majority of our courtrooms. If you intend on using the equipment please
inform the Courtroom Deputy to discuss what features are available in the courtroom your proceeding is taking
Courtroom Technology place. Many b'mes we may accomodate your needs if given proper notice. Additionally, if training and instruction is
required notify the Courtroom Deputy and they will be able to cooniinate a time with one of the Automab'on staff for
Courtroom Technology FAQ
proper instruction.

ProBono 1. Document Camera - Document cameras, also known as visual presenters, are real-time image capture
devices for displaying an object to a large audience. The Document Camera is located at the Podium/Cart and
Update Mailing Information allows attorneys to present documents and objects as exhibits on the large monitors for viewing by the jury,
witnesses, court, or counsel.
Voluntary Removal from Bar 2. 15" Flat Panel Displays- Monitor displays are located on each counsel table,podium, as well as the witness
box, courtroom deputy and the judges bench. Large LCD panel monitors are mounted for efficient display and
New Bar Number Request (admitted prior to
view for the jury.
1990)
3. Annotation Displays - Anotation displays are located at the podium as well as the witness box in our more
advanced courtrooms. These displays allow for counsel or a witness to highlight, underline, circle, and use a
pointer for enhancing the information being displayed.
4. VCR and DVD Combination Unit- Available at the podium for video presentation. The courtroom deputy can
assist in the queing of the video as well as a remote is available for use.
5. Laptop XGA Connections - XGA resolution(1 024 X 768) and 60 Hertz refresh rate are available at the podium
as well as each counsel table for portable laptop connection and presentation. If you have any embedded
videos on your laptop, some laptop maufacturers recommend a 72 Hertz refresh rate. We do not offer any
other type of connections.
6. Microphones - Microphones are available at each attorney table, witness box, podium as well as any special
conditions needed to be met. They are controlled by a main control system managed by each courtroom
deputy.
7. Realtime Transcription Serial Connections- These connections are available only within all of
our courtrooms. Prior notification arrangements are necessary to connect. You must notify the individual court
reporter to have this feature made available. Your laptop must have a serial port or you must provide a usb to
serial cable. Similar to Belken F5U409. In addition you will need to install Bridge realtime sofiware.
8. Hearing Impaired -Wireless headphones are available for any person(s) who have hearing loss. Each
heaphone has an ajustable volume control.
9. Video Conferencing -Video Conferencing is available for all courtrooms provided ample time for testing with
remote sites has been given.

Requests for use of an evidence presentation system either through the use of the court's equipment, or through an
outside vendor, should be discussed in pre-trial proceedings with the judge or with opposing counsel in as far in
advance of the trial date as possible. In civil cases, reserving the court's equipment as soon as a trial date is known
is helpful in securing the dates needed. There are no fees for use of the court's evidence presentation equipment.
Any outside vendor bringing in equipment must have prior approval. We make every attempt to have current
techonogies in the courtroom but exceptions may be granted.

Image:

289

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ATTACHMENT C

291
 U.S. DISTRICT COURT
N.D. OF N.Y.
FILED
September 13, 2013

LAWRENCE K. BAERMAN, CLERK

UNITED STATES DISTRICT COURT

FOR THE
NORTHERN DISTRICT OF NEW YORK

JURY PLAN
FOR THE
RANDOM SELECTION OF GRAND AND PETIT JURORS

GENERAL ORDER 24

Approved by the Second Circuit Council:

September 26, 2013

292
 PLAN OF THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK
FOR THE RANDOM SELECTION OF GRAND AND PETIT JURORS

The Jury Plan adopted by this Court for the random selection of grand and petit jurors filed
with the Court on July 1, 1968, including the amendments to the original Plan, is hereby revoked
and rescinded, and the following Plan is hereby adopted to become effective on the date approved
by the Reviewing Panel of the U.S. Court of Appeals, Second Circuit.

I. APPLICABILITY OF THE PLAN

This Jury Plan is applicable to all divisions in the Northern District of New York. The cities
of Albany, Auburn, Binghamton, Malone, Plattsburgh, Syracuse, Utica & Watertown have
been designated by 28 U.S.C. § 112 as the places of holding court. There being no statutory
divisions in the Northern District of New York, the district is hereby divided into divisions for jury
selection purposes, as defined in 28 U.S.C. § 1869(e), as follows:

1. ALBANY DIVISION: Albany, Columbia, Greene, Rensselaer, Saratoga,

Schenectady, Schoharie, Ulster, Warren and Washington counties.

2. BINGHAMTON DIVISION: Broome, Chenango, Delaware, Otsego and

Tioga counties.

3.SYRACUSE/AUBURN DIVISION: Cayuga, Cortland, Madison,

Onondaga, Oswego and Tompkins counties.

4. UTICA DIVISION: Fulton, Hamilton, Herkimer, Montgomery and

Oneida counties.

5. WATERTOWN DIVISION: Jefferson, Lewis and St. Lawrence counties.

6. MALONE/PLATTSBURGH DIVISION: Clinton, Essex and Franklin

counties.

II. DECLARATION OF POLICY (28 U.S.C. § 1861)

It is the policy of the United States and this Court that all litigants entitled to a trial by jury
will have the right to grand and petit juries selected at random from a fair cross section of the
community.

It is also the policy of the United States and this Court that all citizens will have the
opportunity to be considered for service on grand and petit juries and that they will have an
obligation to serve as jurors when summoned for that purpose.

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 III. DISCRIMINATION PROHIBITED (28 U.S.C. § 1862)

No citizen will be excluded from service as a grand or petit juror in this Court on account
of race, color, religion, sex, national origin, or economic status.

IV. MANAGEMENT AND SUPERVISION OF THE

JURY SELECTION PROCESS (28 U.S.C. § 1863(b)(1))

The Clerk of the Court will manage the jury selection process under the supervision and
control of the Chief Judge, or his/her designee. In the event of the simultaneous absence, disability,
or inability to act, of the Chief Judge and any other judges designated, the active district judge who
is present in the district and has been in service the greatest length of time will be authorized to act.
The use of the word "clerk" and “clerk of the court” in this plan will mean the clerk of the district
court of the United States, any authorized deputy clerk, and any other person authorized by the
court to assist the clerk in the performance of functions under this plan (28 U.S.C. § 1869(a)).

V. SOURCES OF NAMES OF PROSPECTIVE JURORS (28 U.S.C. § 1863(b)(2))

While voter registration lists represent a fair cross section of the community, an even greater
number of citizens will be eligible for jury service if supplemental source lists are used.
Accordingly, names of grand and petit jurors will be selected at random from voter registration lists
of all counties in the relevant division and supplemented by lists of licensed drivers for these
counties from the New York State Department of Motor Vehicles (“DMV”). The voter lists and
DMV lists will be merged and duplicate records purged. The resulting combined list is hereinafter
referred to as the “combined source list.”

VI. MAINTAINING THE MASTER JURY WHEEL (28 U.S.C. § 1863(b)(3) &(4))

The names of those randomly selected from the combined source list will be placed into the
master jury wheel. The clerk will maintain a master jury wheel for each of the divisions within the
district.

The minimum number of names to be placed initially in the master jury wheel of each
division will be as follows:

1. ALBANY DIVISION (20,000)

2. BINGHAMTON DIVISION (10,000)
3. SYRACUSE / AUBURN DIVISION (20,000)
4. UTICA DIVISION (10,000)
5. WATERTOWN DIVISION (5,000)
6. MALONE / PLATTSBURGH DIVISION (5,000)

These numbers are as large as they are to allow for the possibility that some juror
qualification forms will not be returned, that some prospective jurors may be exempt by law or
excused, and that some may not meet the statutory qualifications. The clerk, based upon the Court's
experience and with the approval of the Chief Judge, may revise the minimum number of names for
any master wheel without need for amendment to this plan. Furthermore, the Chief Judge of this

294
district may order additional names to be placed in the master jury wheels from time to time as
necessary.

The master jury wheel will be emptied and refilled every four years between the date of the
November general election and the following September.

VII. METHOD AND MANNER OF RANDOM SELECTION (28 U.S.C.§ 1863(b)(3))

The selection of names from complete source list databases in electronic media for the master
jury wheel will be accomplished by a purely randomized process through a properly programmed
electronic data processing system. Similarly, a properly programmed electronic data processing
system for pure randomized selection will be used to select names from the master wheel for the
purpose of determining qualification for jury service, and from the qualified wheel for summoning
persons to serve as grand or petit jurors. Such random selections of names from the source list for
inclusion in the master wheel by data computer personnel are designed to ensure: (1) the random
selection of a fair cross section of the community, (2) that the names of persons residing in each of
the counties within the jury division are placed in the master jury wheel, and (3) that each county
within the jury division is substantially proportionally represented in the master jury wheel. The
selections of names from the source list, the master wheel, and the qualified wheel must also ensure
that the mathematical odds of any single name being picked are substantially equal.

In order to ensure the exercise of proper management over the automated aspects of the jury
selection process, the operator of the computer will comply with the requirements of this jury plan
and such other written instructions as provided by the clerk and will certify their compliance with
the requirements.

VIII. DRAWING OF NAMES FROM THE MASTER JURY WHEEL:

COMPLETING OF JURY QUALIFICATION FORM (28 U.S.C. § 1864)

This District has adopted a two-step qualification and summoning procedure. The Jury
Management System (JMS) is provided by the Administrative Office of the U.S. Courts and will
be used to select names from the master jury wheel for qualification and summoning of
prospective jurors.

From time to time as directed by the Court, the clerk will draw at random from the master
jury wheel the names of as many persons as may be required for jury service. The clerk will mail
to each person whose name is drawn from the master wheel a juror qualification form or a notice
to complete the juror qualification form electronically through the Court’s internet website at
www.nynd.uscourts.gov. If the person is unable to fill out the form, another may do it for him/her,
and should indicate that they have done so and the reason why.

In any case in which it appears that there is an omission, ambiguity, or error in a form,
the clerk will return the form with instructions to the person to make such corrections as may be
necessary and to return the form to the clerk within ten days.

Any person who fails to complete the juror qualification form may be summoned by the clerk

295
to appear and to personally complete such form. Any person failing to appear pursuant to a
summons may be issued an order to show cause for failure to comply with the summons. A person
failing to appear or show cause for noncompliance with a summons may be fined not more than
$1,000, imprisoned not more than three days, ordered to perform community service, or any
combination thereof.

Any person who willfully misrepresents a material fact on a juror qualification form for the
purpose of avoiding or securing service as a juror may be fined not more than $1,000, imprisoned
not more than three days, ordered to perform community service, or any combination thereof.

The clerk will post a general notice for public review in the clerk’s office and on the
Court’s website explaining the process by which names are periodically and randomly drawn.

IX. QUALIFICATIONS FOR JURY SERVICE (28 U.S.C. § 1865)

The clerk is authorized and directed under the supervision of the Court to make a
determination as to whether a person is qualified, unqualified, exempt, or to be excused from jury
service. Such determination shall be made solely on the basis of information furnished on the juror
qualification form and other competent evidence. The clerk will enter such determination in the
space provided on the jurors’ qualification form and/or in the JMS database.

Any person will be deemed qualified to serve on grand and petit juries in the Court unless
he or she:

(1) is not a citizen of the United States eighteen years old who has resided for a
period of one year within the judicial district;
(2) is unable to read, write, and understand the English language with a degree of
proficiency sufficient to fill out satisfactorily the juror qualification form;
(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirmity, to render satisfactory
jury service; or
(5) has a charge pending against him/her for the commission of, or has been
convicted in a State or Federal court of record of, a crime punishable by
imprisonment for more than one year and his/her civil rights have not been
restored.

The names of persons found to be disqualified will not be placed in the qualified wheel.

Notice of persons who identify themselves as non-citizens through the juror qualification
process will be provided to appropriate election officials for verifying voter registration
eligibility.

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 X. EXEMPTION FROM JURY SERVICE (28 U.S.C. § 1863(b)(6))

The Court finds and hereby states that the following persons are barred from jury service on
the ground that they are exempt:

(1) members in active service of the Armed Forces of the United States;
(2) members of the fire or police departments of any State, District, Territory,
Possession, or subdivision thereof;
(3) public officers in the executive, legislative, or judicial branches of the
government of the United States or any State, District, Territory, Possession
or subdivision thereof who are actively engaged in the performance of
official duties (public officer will mean a person who is either elected to
public office or who is directly appointed by a person elected to public
office).

The names of persons found to be exempt under this section will not be placed in the
qualified wheel.

XI. EXCUSES ON INDIVIDUAL REQUEST (28 U.S.C. § 1863(b)(5)(A) &(B))

This Court finds that jury service by members of the following occupational classes or
groups of persons would entail undue hardship or extreme inconvenience to the members thereof,
and the excuse of such members would not be inconsistent with 28 U.S.C. §1861 and 1862, and will
be granted upon individual written request:

(1) persons having active care and custody of a child under (12) years of
age whose health and/or safety would be jeopardized by their absence for
jury service;
(2) a person who is essential to the care of the aged or infirm persons;
(3) persons more than 70 years of age;
(4) volunteer safety personnel (personnel who serve without compensation
as fire fighters, members of a rescue squad or ambulance crew for a public
agency);
(5) actively practicing attorneys, physicians, dentists, clergy, and
registered nurses;
(6) sole proprietor of a business.

Due to the large geographic distribution and the variable climate of the Northern District,
the Court recognizes that the distance a juror may have to travel may cause an undue hardship or
extreme inconvenience to the juror. Accordingly, upon individual request, the clerk will consider
an application by a prospective juror for excuse from jury service on the basis of undue hardship or
excessive travel at the time of summoning. The Court hereby defines excessive travel as any
distance more than seventy miles (one way) from the juror’s residence to the courthouse.

297
 XII. TEMPORARY EXCUSES (28 U.S.C. § 1866(c))

Upon a showing of undue hardship or extreme inconvenience, a person summoned for jury
service may be excused by the clerk, under supervision of the Court, for such period of time as the
clerk deems necessary. At the conclusion of such period, the person’s name will be summoned
again for jury service, or placed back into the qualified wheel. If the circumstances causing undue
hardship or extreme inconvenience may be reasonably expected to continue for an indefinite period,
the prospective juror may be excused from the current jury wheel.

If a summoned juror has changed residence from one division of the Court to another
division of the Court, subsequent to the establishment of their qualification, such juror will be
excused from service in the division of original residence for such period of time as the clerk deems
necessary. At the conclusion of that period, the person will be summoned for jury service in the
division of current residence.

A summoned juror, who has previously attended court for prospective service as a grand or
petit juror in a state or federal court, will be granted a two-year postponement, upon individual
written request (28 U.S.C. § 1866(e)).

XIII. QUALIFIED JURY WHEEL (28 U.S.C. § 1866(a))

The clerk will maintain separate qualified jury wheels for each division in the district and
will place in such wheel the names of all persons drawn at random from the master jury wheels and
not disqualified, exempt, or excused pursuant to this plan. The clerk will insure that at all times at
least 300 names are contained in each such qualified jury wheel. The qualified wheels may be
refilled in one drawing, or in increments; provided, however, that each qualified wheel must always
contain no fewer than 300 names.

XIV. SELECTION AND SUMMONING OF JURY POOLS

AND DISCLOSURE OF POOL NAMES (28 U.S.C. § 1863(b)(8); 1866)

From time to time the clerk will draw at random from the qualified jury wheel or wheels,
either manually or by use of a properly programmed data computer, such numbers of names of
persons as may be required for assignment to grand or petit jury pools. Each person drawn for jury
service will be issued a summons. Summonses will be served by first-class mail addressed to each
potential juror at his/her usual residence. The clerk will post a general notice for public review in
the clerk’s office and on the Court’s website explaining the process by which names are periodically
and randomly drawn. The clerk will prepare a separate list of names of persons assigned to each
grand and petit jury pool (JMS Pool Selection Report). These names may be disclosed by the clerk
to parties, the public, and the press upon written request to the presiding trial judge after said list is
prepared and the jurors have been summoned. In accordance with 28 U.S.C. § 1863(b)(7), the Court
may, at any time, keep these names confidential in any case where the interest of justice so requires.

298
 Any person summoned for jury service who fails to appear as directed may be ordered by
the Court to appear forthwith and show cause for failure to comply with the summons. Any person
who fails to show good cause for noncompliance with a summons may be fined not more than
$1,000, imprisoned not more than three days, ordered to perform community service, or any
combination thereof.

XV. PUBLIC ACCESS

The office of the Clerk of the Court will retain and, when requested, provide access to the
following public documents:

(1) Jury Selection Plan (General Order 24), available at www.nynd.uscourts.gov.

(2) The clerk’s instructions to the agency that carries out the automated name
selection tasks for the refill of the jury wheel.
(3) Required public notices, showing where and when posted.

XVI. MAINTENANCE AND DISCLOSURE OF RECORDS (28 U.S.C. § 1867(f); 1868)

(A) Contents of Records

The contents of records or papers used by the clerk in connection with the jury selection
process will not be disclosed to anyone other than court personnel except (1) pursuant to this plan,
(2) as authorized by the Chief Judge or Jury Judge, or (3) as may be necessary in the preparation of
a motion challenging the juror selection process (28 U.S.C. § 1867). The parties in a case will be
allowed to inspect, reproduce and copy such records or papers at all reasonable times during the
preparation and pendency of such a motion. Any person who discloses the contents of any record
or paper in violation of this subsection may be fined not more than $1,000, imprisoned not more than
one year, or both.

After the master jury wheel is emptied and refilled and after all persons selected to serve as
jurors before the master wheel was emptied have completed such service, all records and papers
compiled and maintained by the jury office with regard to the emptied master jury wheel will be
preserved in the custody of the clerk for four years.

(B) Names of Trial Jurors

(1) The names of trial jurors may be released to the parties, the public, or the
press at the conclusion of a trial only upon leave of the Court. All requests
for release of juror names must be made in writing to the presiding trial
judge.

(2) Lists of potential juror names and Jury Biographical Information Sheets,
provided to attorneys at the start of jury selection, are the property of the
Court and must be returned to the Court at the conclusion of each day’s
proceedings for proper disposal.

299
 (3) Pursuant to Rule 49.1 (e) of the Federal Rules of Criminal Procedure, this
Court has determined that the names of all jurors and potential jurors will
not be disclosed in the public docket or in transcripts filed with the Court
absent an order of the Court. Transcripts will be filed in redacted form in the
public docket. All requests for unredacted transcripts should be submitted
in writing to the presiding trial judge.1

(C) Report on Operation of the Jury Selection Plan (AO-12)

Any party seeking disclosure of the Report on Operation of the Jury Selection Plan (AO-12),
must make written application to the Chief Judge or designated jury judge. Disclosure will be made
only upon the approval of the Chief Judge or jury judge.

XVII. GRAND JURY PANELS

One or more grand juries will be empaneled for this district or any division of this district
for terms of service at Albany, Binghamton, Syracuse & Plattsburgh, or such other places as the
Court may designate and at such times as the Court may order. If a grand jury is to be impaneled for
service in a division only, the clerk will draw at random from the qualified wheel of that division
such number of prospective grand jurors as may be required for assignment to the grand jury pool.
If a grand jury is to be empaneled for service in the entire district, the clerk will draw at random
from the qualified wheel of each division such number of prospective grand jurors as may be
required in the same ratio that the number of registered voters or consolidated lists in each division
bears to the total number of registered voters or consolidated list in the district.

Each person drawn for grand jury service will be issued a summons. The summons will be
served by first-class mail addressed to such person at their usual residence.

Individuals summoned to serve as grand jurors may request excusal, temporary excusal,
exemption, or disqualification pursuant to the categories described in Section IX, X, XI, and XII
of this plan.

Each grand jury will serve until discharged by court order, but no regular, criminal grand
jury will serve for more than eighteen months unless the Court extends the service of the grand jury
for a period of six months or less, upon a determination that such extension is in the public interest.
Special Grand Juries, as defined in 18 U.S.C. § 3331, will serve a term of eighteen months unless
an order for its discharge is entered earlier by the Court. If, at the end of an eighteen-month term or
any extension thereof, the District Court determines the business of the grand jury has not been
completed, the Court may enter an order extending such term for up to three additional six-month
periods. No special grand jury term so extended will exceed thirty-six months, except as provided
in 18 U.S.C. § 3333(e).

The Court may direct that alternate jurors be designated at the time a grand jury is selected.

1
See also FRCrP 49.1, Privacy Protection for Filings made with the Court (including committee notes).

300
Alternate jurors, in the order in which they were designated, may thereafter be impaneled to replace
excused jurors. Alternate jurors will be drawn in the same manner and will have the same
qualification as the regular jurors and, if impaneled, will be subject to the same challenges, will take
the same oath, and will have the same functions, powers, facilities, and privileges as the regular
grand jurors.

In the interest of achieving administrative economies the Court may at any time direct that
one grand jury composed of jurors drawn from the qualified wheel of only one jury division will
serve the entire judicial district.

The contents of records or papers used by the clerk in connection with the grand jury
selection process may be disclosed to the United States Attorney’s Office upon written request to
the clerk. Names and contact information for empaneled grand jurors will be provided to the U.S.
Attorney’s Office without prior leave.

XVIII. CHALLENGES TO THE SELECTION PROCEDURES (28 U.S.C. § 1867)

Any challenge to this plan or the Court's compliance with the provisions of this plan or
compliance with the provisions of the Jury Selection and Service Act of 1968 will be made within
the times and in the manner provided in 28 U.S.C. § 1867.

XIX. ADOPTION OF THE PLAN (28 U.S.C. § 1863(a))

The plan is approved and adopted by the Board of Judges of this District on the date
entered below. The plan will be placed into operation in accordance with the provisions of the
Jury Selection Act of 1968, Section 1863(a). Work toward implementing this plan will begin as
soon as practicable after its approval by a reviewing panel consisting of the members of the
Judicial Council of the 2nd Circuit and the Chief Judge of this Court, or such District Judge(s) as
may be designated by him. This plan will take effect upon approval by the reviewing Panel of
the U.S. Court of Appeals, 2nd Circuit.

Dated this 13th day of September, 2013

Approved by the Second Circuit Council: September 26, 2013

301
ATTACHMENT D

302
 LOCAL RULES OF PRACTICE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF NEW YORK

Effective January 1, 2013

303
 47.1 Grand and Petit Jurors

Grand and petit jurors to serve at stated and special sessions of the Court shall be summoned pursuant
to 28 U.S.C. §§ 1861-67, and the Plan adopted and approved by the judges of this Court and approved by the
Judicial Council for the Court of Appeals for the Second Circuit. The selection of grand and petit jurors is
made by random selection from voter registration lists and supplemented by, if available, lists of licensed
drivers from theNew York State Department ofMotor Vehicles. Court sessions, pursuant to 28 U.S. C. § 112,
are designated to be held in the Northern District ofNew York in the cities of Albany, Auburn, Binghamton,
Malone/Plattsburgh, Syracuse, Utica, and Watertown. For jury selection purposes under§ 1869(c), this
District is divided into divisions from which jurors are selected for the particular place where jury sessions
are to be held. The divisions are as follows:

1. ALBANY DIVISION: Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady, Schoharie,

Ulster, Warren and Washington Counties

2. BINGHAMTON DIVISION: Broome, Chenango, Delaware, Otsego and Tioga Counties

3. SYRACUSE - AUBURN DIVISION: Cayuga, Cortland, Madison, Onondaga, Oswego, and

Tompkins Counties

4. UTICA DIVISION: Fulton, Hamilton, Herkimer, Montgomery and Oneida Counties

5. WATERTOWN DIVISION: Jefferson, Lewis and St. Lawrence Counties

6. MALONE/PLATTSBURGH DIVISION: Clinton, Essex and Franklin Counties

A copy of the Plan for the NDNY for Random Selection of Grand and Petit Jurors is available upon
request at the Clerk's office or on the Court's webpage at ''www.nynd.uscourts.gov."

47.2 Jury Selection

(a) Voir Dire. The Court, the attorneys, or both shall conduct voir dire examination as the Court shall
determine. The court, in its sound discretion, may limit the attorneys' examination in time and subject matter.

(b) Impanelment of the Jury. In its discretion, the Court shall impanel the jury by use of either the
"Strike" or "Jury Box" selection method unless the Court determines otherwise.

(c) Peremptory Challenges. Unless the Court orders otherwise, all parties shall alternately exercise
their peremptory challenges.

(d) Waiver of Peremptory Challenges. Except when using the strike method, if a party passes or
refuses to exercise a peremptory challenge, such action shall constitute a waiver of the right to exercise the
challenge.
(e) Names of Potential Jurors during Voir Dire. During the voir dire process, unless otherwise
directed by the presiding judicial officer, potential jurors shall be referred to by their assigned juror number.
Should an issue develop where the name of the potential juror is germane, the requesting party shall submit
a written request to the presiding judicial officer for release of the potential juror's name.

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 47.3 Assessment of Juror Costs

Whenever any civil action scheduled for jury trial is postponed, settled or otherwise disposed of in
advance of the actual trial, then, except for good cause shown, all juror costs, including marshal's fees,
mileage and per diem, shall be assessed against the parties and/or their attorneys as the Court directs, unless
the parties or their attorneys notify the Court and the Clerk's office at least one full business day prior to the
day on which the action is scheduled for trial, so that the Clerk has time to advise the jurors that it shall not
be necessary for them to attend. The parties may request an advance estimate of costs from the Clerk.

47.4 Jury Deliberation

Availability of Attorneys During Jury Deliberations. Attorneys shall be available on short notice
during jury deliberations in the event of a verdict or a question by the jury. Attorneys shall keep the Clerk
informed as to where they will be at all times when the jury is deliberating. Attorneys should not leave the
building without the presiding judge's prior approval.

47.5 Jury Contact Prohibition

The following rules apply in connection with contact between attorneys or parties and jurors.

1. At any time after the Court has called a jury panel from which jurors shall be selected to try cases
for a term of Court fixed by the presiding judge or otherwise impaneled, no party or attorney, or
anyone associated with the party or the attorney, shall have any communication or contact by any
means or manner with any juror until such time as the panel of jurors has been excused and the
term of court ended.

2. This prohibition is designed to prevent all unauthorized contact between attorneys or parties and
jurors and does not apply when authorized by the judge while court is in session or when otherwise
authorized by the presiding judge.

48.1 Number of Jurors

In civil cases, the Court shall determine the number of jurors, which shall not be less than six nor more
than twelve.

49.1 Special Verdicts and Interrogatories

[Reserved]

50.1 Judgment as a Matter of Law in Actions Tried by Jury; Alternative Motion for New Trial;
Conditional Rulings

[Reserved]

51.1 Instructions to the Jury

When Submitted and Served. See Uniform Pretrial Scheduiing Order issued by the court following

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29 [VI: Trials]
 the initial pretrial conference. See L.R. 16.1(e).

52.1 Proposed Findings in Civil Cases

(a) In civil non-jury trials, each party shall submit proposed findings of fact and conclusions of law
sufficiently detailed that, if the Court adopts them, would form an adequate factual basis, supported by
anticipated evidence, for the resolution of the case and the entry of judgment.

(b) When Submitted and Served. See Uniform Pretrial Scheduling Order issued by the Court
following the initial pretrial conference. See L.R. 16.l(e).

53.1 Masters

[Reserved]

53.2 Master's Fees

The Court, in its discretion, shall fix the compensation of masters. Factors the Court shall consider
include expended hours, disbursements, the relative complexity of the matter, and whether the parties have
previously consented to a reasonable rate of compensation. The compensation and disbursements shall be
paid and taxed as costs in the manner and amounts that the Court directs unless the parties stipulate
otherwise.

53.3 Oath of Master, Commissioner, etc.

Every person appointed master, special master, commissioner, special commissioner, referee, assessor
or appraiser (collectively referred to as "master") shall take and subscribe an oath, which, except as otherwise
prescribed by statute or rule, shall be to the effect that they will faithfully and impartially discharge their
duties. The oath shall be taken before any federal or state officer authorized by federal law to administer oaths
and shall be filed in the Clerk's office.

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ATTACHMENT E

307
 HANDBOOK FOR TRIAL JURORS

SERVING IN THE

UNITED STATES DISTRICT COURTS

Prepared for the use of trial jurors serving in the United States district courts under the supervision
of the Judicial Conference of the United States. Published by the Administrative Office of the
United States Courts, Washington, D.C. 20544.308
 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

Purpose of This Handbook

The purpose of this handbook is to acquaint trial jurors with the general nature and
importance of their role as jurors. It explains some of the language and procedures used in court,
and it offers some suggestions helpful to jurors in performing this important public service.

Nothing in this handbook is to be regarded by jurors as instructions of law to be applied by

them in any case in which they serve. The judge will instruct the jury in each separate case as to the
law of that case. For example, in each criminal case, the judge will tell the jury, among other things,
that a defendant charged with a crime is presumed to be innocent and the burden of proving his guilt
beyond a reasonable doubt is upon the Government. Jurors must follow only the instructions of law
given to them by the trial judge in each particular case.

Importance of Jury Service

Jurors perform a vital role in the American system of justice. The protection of our rights
and liberties is largely achieved through the teamwork of judge and jury who, working together in a
common effort, put into practice the principles of our great heritage of freedom. The judge
determines the law to be applied in the case while the jury decides the facts. Thus, in a very
important way, jurors become a part of the court itself.

Jurors must be men and women possessed of sound judgment, absolute honesty, and a
complete sense of fairness. Jury service is a high duty of citizenship. Jurors aid in the maintenance
of law and order and uphold justice among their fellow citizens. Their greatest reward is the
knowledge that they have discharged this duty faithfully, honorably, and well. In addition to
determining and adjusting property rights, jurors may also be asked to decide questions involving a
crime for which a person may be fined, placed on probation, or confined in prison. In a very real
sense, therefore, the people must rely upon jurors for the protection of life, liberty, and the pursuit of
happiness.

The Courts

In this country, there are two systems of courts. They are the courts of the individual 50
States and the District of Columbia and the courts of the Federal Government. This book is written
for jurors selected to serve in the trial court of the Federal Government, the United States District
Court. The types of cases which can be brought in this court have been fixed by the United States
Congress according to our Federal Constitution.

Cases in the United States District Courts are divided into two general classes. These are
called criminal cases and civil cases.

Criminal cases are those in which individuals or organizations are charged with breaking the
criminal laws. Typical criminal charges in a federal court are those involving violation of the federal
income tax and narcotics laws, mail theft, and counterfeiting.

Civil cases are suits in which persons who disagree over their rights and duties come into
court to settle the matter. A typical example of a civil case is one involving a broken contract. One
party may claim that it should be paid under the terms of the contract, while the other side may assert
a defense to the claim, such as the lack of a binding contract. The court is asked to decide who is
right. This depends on the law as laid down by the judge and the facts as decided by the jury.

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 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

The Criminal Case

The person charged with a violation of the law is the defendant. The charge against the
defendant may be brought in two ways. One way is by means of an indictment; the other is by an
information.

An indictment is a written accusation by a grand jury that charges the defendant with
committing an offense against the law. Each offense charged will usually be set forth in a separate
count of the indictment.

An information is the name given to a written charge against the defendant filed by the
United States Attorney and not by the grand jury. But even in cases where the defendant has the
right to have a grand jury consider the charges presented, the defendant may agree to give up this
right and consent to the filing of an information.

After the indictment or information is filed, the defendant appears in open court where the
court advises the defendant of the charge and asks whether the defendant pleads "guilty" or "not
guilty." This procedure is called the arraignment.

No trial is needed if the defendant pleads guilty and admits to committing the crime. But if
the defendant pleads not guilty he or she will then be placed on trial.

The judge in a criminal case tells the jury what the law is. The jury must determine what the
true facts are. On that basis the jury has only to determine whether the defendant is guilty or not
guilty as to each offense charged. What happens thereafter is not for the jury's consideration, but is
the sole responsibility of the judge. In other words, the sentence is not to be considered in any way
by the jury in arriving at an impartial verdict as to the guilt or innocence of the defendant.

The jury must consider separately each of the charges against the defendant, after which it
may find the person: not guilty of any of the charges, guilty of all the charges, or guilty of some of
the charges and not guilty of others.

The Civil Case

The following is an example of the kind of civil case jurors in a United States District Court
will help decide.

Let us call the case John Smith v. XY Company. This means that John Smith has filed a
case against the XY Company.

John Smith is called the plaintiff, the person who begins the case. The XY Company is the
defendant. The plaintiff and the defendant are the parties

The plaintiff, John Smith, states his claim in a paper called the complaint. The defendant, XY
Company, replies to the complaint in a paper called the answer. The complaint and the answer are
the main pleadings in the case. The points in the pleadings upon which the parties disagree make up
the issues of fact and law. Sometimes these issues are set forth in a pre-trial order. This is an order
drawn up by the judge after consulting with the attorneys for the parties.

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The Voir Dire Examination

To begin a jury trial, a panel of prospective jurors is called into the courtroom. This panel
will include a number of persons from whom a jury will be selected to try the case. Alternate jurors
may be chosen to take the place of jurors who become ill during the trial.

The panel members are sworn to answer questions about their qualifications to sit as jurors
in the case. This questioning process is called the voir dire. This is an examination conducted by
the judge and sometimes includes participation by counsel. A deliberately untruthful answer to any
fair question could result in serious punishment to the person making it.

The voir dire examination opens with a short statement about the case. The purpose is to
inform the jurors of what the case is about and to identify the parties and their lawyers.

Questions are then asked to find out whether any individuals on the panel have any personal
interest in the case or know of any reason why they cannot render an impartial verdict. The court
also wants to know whether any member of the panel is related to or personally acquainted with the
parties, their lawyers, or the witnesses who will appear during trial. Other questions will determine
whether any panel members have a prejudice or a feeling that might influence them in rendering a
verdict. Any juror having knowledge of the case should explain this to the judge.

Parties on either side may ask that a member of the panel be excused or exempted from
service on a particular jury. These requests, or demands, are called challenges.

A person may be challenged for cause if the examination shows he or she might be
prejudiced. The judge will excuse an individual from the panel if the cause raised in the challenge is
sufficient. There is no limit to the number of challenges for cause which either party may make.

The parties also have a right to a certain number of challenges for which no cause is
necessary. These are called peremptory challenges. Each side usually has a predetermined number
of peremptory challenges. The peremptory challenge is a legal right long recognized by law as a
means of giving both sides some choice in the make-up of a jury. Jurors should clearly understand
that being eliminated from the jury panel by a peremptory challenge is no reflection upon their
ability or integrity.

In some courts the peremptory challenges are made openly in the hearing of the jury. In
others, they are made from the jury list out of the jury's sight.

The Jurors' Solemn Oath

After the voir dire is completed, the jurors selected to try the case will be sworn in. The
judge or the clerk will state to the jury:

"Members of the Jury, you will rise, hold up your right hands, and
be sworn to try this case."

The jurors then rise and hold up their right hands. The jurors face the judge or the clerk
who is to administer the oath. That official slowly, solemnly, and clearly repeats the oath. The
jurors indicate by their responses and upraised hands that they take this solemn oath.

Jurors not wishing to take an oath may request to affirm instead of swear. In some districts
the jury is sworn upon the Bible and not by uplifted hand.

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 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

The Eight Stages of Trial

The trial proceeds when the jury has been sworn. There are usually eight stages of trial in
civil cases. They are:

(1) The lawyers present opening statements. Sometimes the opening statements on behalf
of one or more parties are omitted.

(2) Plaintiff calls witnesses and produces evidence to prove its case.

(3) Defendant may call witnesses and produce evidence to disprove the plaintiffs case and
to prove the defendant's claims.

(4) Plaintiff may call rebuttal witnesses to disprove what was said by the defendant's
witnesses.

(5) Closing arguments are made by the lawyer on each side.

(6) The judge instructs or charges the jury as to the law.

(7) The jury retires to deliberate.

(8) The jury reaches its verdict.

During the trial, witnesses called by either side may be cross-examined by the lawyers on the
other side.

Throughout the trial, the judge may be asked in the presence of the jury to decide questions
of law. Usually these questions concern objections to testimony that either side wants to present.
Occasionally, the judge may ask jurors to leave the courtroom briefly while the lawyers present their
legal arguments for and against such objections. The law requires that the judge decide such
questions.

A ruling by the judge does not indicate that the judge is taking sides. He or she is merely
saying, in effect, that the law does, or else does not, permit that question to be asked.

It is possible that the judge may decide every objection favorably to the plaintiff or the
defendant. That does not mean the case should be decided by the jury for the plaintiff or the
defendant. Even where the judge decides every objection favorably to the plaintiff or the defendant,
the jury should maintain its objectivity and base its verdict strictly upon the testimony and exhibits
received in evidence at trial.

The juror takes an oath to decide the case "upon the law and the evidence." The law is what
the judge declares the law to be. The evidence which you will consider consists of the testimony of
witnesses and the exhibits admitted in evidence. What evidence is proper for the jury to consider is
based upon the law of evidence.

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 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

The Arguments of Counsel

After presentation of the evidence is completed, the lawyers have the opportunity to discuss
the evidence in their closing arguments. This helps the jurors recall testimony that might have
slipped their memory.

The chief purpose of the argument is to present the evidence in logical and comprehensible
order. The lawyers fit the different parts of the testimony together and connect up the facts.

It must be remembered that each attorney presents the view of the case that is most favorable
to his or her own client. Each lawyer's side appears to be right to that lawyer. Each lawyer's
statement may be balanced by the statement of the lawyers on the other side.

The Charge to the Jury

The charge of a judge to a jury in a United States District Court frequently is much more
than a statement of the rules of law. Sometimes it may contain a summary of the facts or some of
the facts.

It is the jury's duty to reach its own conclusion. This is done upon the evidence. The verdict
is reached without regard to what may be the opinion of the judge as to the facts, though as to the
law the judge's charge controls.

The judge may point out and may also explain what basic facts are in dispute, and what facts
do not actually matter in the case. In other words, the judge may try to direct the jury's attention to
the real merits of the case and impartially summarize the evidence bearing on the questions of fact.
The judge will state the law related to the facts presented to the jury.

The Jury's Verdict

In both civil and criminal cases, it is the jury's duty to decide the facts in accordance with the
principles of law laid down in the judge's charge to the jury. The decision is made on the evidence
introduced, and the jury's decision on the facts is usually final.

Courtroom Etiquette

A court session begins when the court official raps for order. Everyone in the court rises.
The judge takes his or her place on the bench, and the court official announces the opening of court.
A similar procedure is used when court adjourns.

Common courtesy and politeness are safe guides as to the way jurors should act. Of course,
no juror will be permitted to read a newspaper or magazine in the courtroom. Nor should a juror
carry on a conversation with another juror in the courtroom during the trial.

Jurors will be treated with consideration. Their comfort and convenience will be served
whenever possible. They should bring to the attention of the judge any matter affecting their service
and should notify the court of any emergencies. In the event of a personal emergency a juror may
send word to the judge through any court personnel, or may ask to see the judge privately.

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 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

Conduct of the Jury during the Trial

Jurors should give close attention to the testimony. They are sworn to disregard their
prejudices and follow the court's instructions. They must render a verdict according to their best
judgment.

Each juror should keep an open mind. Human experience shows that, once persons come to
a preliminary conclusion as to a set of facts, they hesitate to change their views. Therefore, it is wise
for jurors not to even attempt to make up their mind on the facts of a case until all the evidence has
been presented to them, and they have been instructed on the law applicable to the case. Similarly,
jurors should not discuss the case even among themselves until it is finally concluded.

During the trial the jury may hear references to the rules of evidence. Some of these rules
may appear strange to a person who is not a lawyer. However, each rule has a purpose. The rules
have evolved from hundreds of years of experience in the trial of cases.

The mere fact that a lawsuit was begun is not evidence in a case. The opening and closing
statements of the lawyers are not evidence. A juror should disregard any statements made by a
lawyer in argument that have not been proved by the evidence. A juror should also disregard any
statement by a lawyer as to the law of the case if it is not in accord with the judge's instructions.

Jurors are expected to use all the experience, common sense and common knowledge they
possess. But they are not to rely on any private source of information. Thus they should be careful,
during the trial, not to discuss the case at home or elsewhere. Information that a juror gets from a
private source may be only half true, or biased or inaccurate. It may be irrelevant to the case at hand.
At any rate, it is only fair that the parties have a chance to know and comment upon all the facts that
matter in the case.

If it develops during the trial that a juror learns elsewhere of some fact about the case, he or
she should inform the court. The juror should not mention any such matter in the jury room.

Individual jurors should never inspect the scene of an accident or of any event in the case. If
an inspection is necessary, the judge will have the jurors go as a group to the scene.

Jurors must not talk about the case with others not on the jury, even their spouses or
families, and must not read about the case in the newspapers. They should avoid radio and
television broadcasts that might mention the case. The jury's verdict must be based on nothing else
but the evidence and law presented to them in court.

Breaking these rules is likely to confuse a juror. It may be hard to separate in one's mind the
court testimony and reports coming from other sources.

Jurors should not loiter in the corridors or vestibules of the courthouse. Embarrassing
contacts may occur there with persons interested in the case. If juror identification badges are
provided, they should be worn in the courthouse at all times.

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 HANDBOOK FOR TRIAL JURORS IN THE FEDERAL COURTS

If any outsider attempts to talk with a juror about a case in which he or she is sitting, the
juror should do the following:

(1) Tell the person it is improper for a juror to discuss the case or receive any information
except in the courtroom.

(2) Refuse to listen if the outsider persists.

(3) Report the incident at once to the judge.

Jurors have the duty to report to the judge any improper behavior by any juror. They also
have the duty to inform the judge of any outside communication or improper conduct directed at the
jury by any person.

Jurors on a case should refrain from talking on any subject-even if it is not related to the
matter being tried--with any lawyer, witness, or party in the case. Such contact may make a new trial
necessary.

Some cases may arouse much public discussion. In that event the jury may be kept together
until the verdict is reached. This procedure is used to protect the jurors against outside influences.

In the Jury Room

In some districts the judge selects the foreperson of the jury. In other districts the jurors
elect their foreperson and in still other districts the first juror to enter the jury box becomes the
foreperson automatically. The judge will inform jurors which method is used in the district.

The foreperson presides over the jury's deliberations and must give every juror a fair
opportunity to express his or her views.

Jurors must enter the discussion with open minds. They should freely exchange views.
They should not hesitate to change their opinions if the deliberations have convinced them they were
wrong initially.

In a criminal case all jurors must agree on the verdict. This is also required in a civil case,
unless the jury is otherwise instructed by the court.

The jurors have a duty to give full consideration to the opinion of their fellow jurors. They
have an obligation to reach a verdict whenever possible. However, no juror is required to give up
any opinion which he or she is convinced is correct.

It would be dishonest for a judge to decide a case by tossing a coin. It would be just as
dishonest for a juror to do so.

The members of the jury are sworn to pass judgment on the facts in a particular case. They
have no concern beyond that case. They violate their oath if they render their decision on the basis
of the effect their verdict may have on other situations.

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After the Trial

After the jurors return their verdict and are dismissed by the judge, they are free to go about
their normal affairs, although in some districts jurors must check with jury office personnel to see if
their service is concluded. They are under no obligation to speak to any person about the case and
may refuse all requests for interviews or comments. Nevertheless, the court may enter an order in a
specific case that during any such interview, jurors may not give any information with respect to the
vote of any other juror.

Conclusion

To decide cases correctly, jurors must be honest and intelligent. They must have both
integrity and good judgment. The jury system is based on these attributes. The continued vitality of
the jury system depends on them.

To meet their responsibility, jurors must decide the facts and apply the law impartially. They
must not favor the rich or the poor. They must treat alike all men and women, corporations and
individuals. Justice should be rendered to all persons without regard to race, color, religion or sex.

The performance of jury service is the fulfillment of a high civic obligation. Conscientious
service brings its own reward in the satisfaction of an important task well done. There is no more
valuable work that the average citizen can perform in support of our Government than the full and
honest discharge of jury duty.

The effectiveness of the democratic system itself is largely measured by the integrity, the
intelligence, and the general quality of citizenship of the jurors who serve in our courts.

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ATTACHMENT F

317
 ABA Section ofLitigation Annual Conference, Apri/18-20, 2012:
Daubert Turning 20: Junk Science Replaced By Junk Rulings?

Daubert Turning 20: Junk Science

Replaced By Junk Rulings?

Kenneth R. Berman
Nutter McClennen & Fish LLP
Boston, Massachusetts

INTRODUCTION

Near the end ofthe 20th century, the United States Supreme Court decided two landmark cases
that dramatically changed 21st century litigation: Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In practice, this
pair of cases shifted the balance of power between judge and jury, plaintiff and defendant. In civil
matters, these cases effectively increased the burden of proof without explicitly saying or even
intending to do so. In criminal matters, these cases gave judges more power over the introduction
or exclusion of exculpatory or incriminating expert evidence.

In a nutshell, Daubert articulated a flexible standard for admissibility of scientific opinion

evidence in federal cases to ensure that expert scientific opinions are grounded in a reliable
methodology. In Kumho Tire, the Court held that judges should also apply similar standards to
non-scientific opinions.

This is now the admissibility standard for all expert testimony in federal courts. In 2000, Fed. R.
Ev. 702 was amended to embrace the holdings of Daubert and Kumho Tire. This standard has also
been adopted in many state courts.

In the way trial judges are now applying these two cases, one might surmise that the cases were a
318
reaction to a perceived undesirable liberality with which courts were admitting expert testimony.
Daubert in particular is commonly described as a bulwark against junk science in the courtroom,
causing many to think the Supreme Court must have been attempting to stamp out a permissive
regime that allowed junk science to poison too many jury verdicts.

Daubert and Kumho Tire have thus acquired a reputation as the antidote to a perceived indulgence
for phony opinions. Those who interpret these cases as imposing a high standard for admissibility
point to language that the judge is a "gatekeeper," and argue this means that the judge must
thoroughly inspect all proposed expert opinions and allow in only those that, in the judge's mind,
meet a high standard of reliability. See, e.g., V. Schwartz & C. Silverman, The Draining of
Daubert And The Recidivism Of Junk Science In Federal And State Courts, 35 Hofstra L. Rev.
217, 221-23 (2006), available at
http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v35nOJ_DD4_Schwartz-
Silverman_final.pdf But was that what the Supreme Court intended?

THE PATH FROM METHODOLOGY TO MYTHOLOGY

Contrary to widely held beliefs, Daubert, authored by Justice Harry Blackmun, liberalized the
standard for admitting scientific evidence.

What the Supreme Court did in Daubert

Daubert came to the Supreme Court after the lower court excluded the expert's opinion because it
flunked the "general acceptance" standard. The "general acceptance" standard, established in
1923 in Frye v. United States, 54App. D.C. 46, 47,293 F. 1013, 1014 (1923), held that
admissible scientific evidence must be based on a scientific technique that is generally accepted
as reliable in the relevant scientific community. In Daubert, the Court held that "general
acceptance" was not a necessary precondition to admissibility of scientific evidence, and that
such a rigid standard would be at odds with the rules' liberal thrust and their general approach of
relaxing the traditional barriers to opinion testimony. Daubert, 509 U.S. at 587.

Instead, the Court in Daubert adopted a more forgiving standard, one that looks to whether the
testimony's underlying reasoning or methodology is scientifically valid and can properly be
applied to the facts at issue. The Court suggested various non-exhaustive factors that could be
considered to assess scientific validity. Among them were whether the expert's methodology has
been tested, peer-reviewed, or published, what the known error rates are, whether the
methodology had been generally accepted in the discipline, and whether there were any standards
controlling the technique's operation.

The Court pointed out that these factors were neither definitive nor a test for admissibility. Id. at
593. The Court cautioned that the inquiry is flexible, to be focused solely on principles and
methodology, not on the conclusions they generate. Id. at 594-95. It emphasized that cross-
examination, presentation of contrary evidence, and careful instruction on the burden of proof,
rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the
appropriate means by which evidence based on valid principles may be challenged. Id. at 595-96.

Beyond these contours, Daubert articulated no other standard by which the admissibility of
scientific evidence is to be decided. Four years later, the Court decided General Electric Co. v.
Joiner, 522 U.S.136 (1997), holding that abuse of discretion is the standard of review on an
appeal from a decision to admit or exclude expert testimony. In so doing, the Court bypassed an
opportunity to shape the way judges decide questions of admissibility.

319
What the Supreme Court did in Kumho Tire

The Court expressly limited Daubert to scientific testimony "because that is the nature of the
expertise offered here." !d. at 590 n.8. Six years later the Court decided Kumho Tire and
addressed admissibility standards for testimony from engineers and other non-scientists whose
opinions are based on technical or specialized, though not necessarily scientific, knowledge.

At issue was whether a tire safety engineer could opine that a tire blowout was caused by a defect
as opposed to some other cause. In excluding the opinion, the district court assessed the
engineer's opinion against the factors mentioned in Daubert and found none to be satisfied. Later,
the district court considered other, non-Daubert factors and still excluded the opinion. On direct
appeal, the Eleventh Circuit reversed, holding that the Daubert factors applied solely to scientific
opinions, and that the district court should not have applied them to an expert who was not a
scientist and whose opinion was based on skill or experience-based observation.

The Supreme Court granted certiorari, reversed the Eleventh Circuit, and affirmed the trial court,
holding that a trial judge may consider Daubert's specific factors when determining the
admissibility of an engineering expert's testimony. Kumho Tire, 526 U.S. at 150. The Court
reasoned that the rules do not distinguish between scientific and other expert testimony, that in
some instances it may be difficult to do so, and that there is no need to develop special rules for
scientific testimony. !d. at 147-49.

The Court also spent much discussion on the trial judge's gatekeeping function, something
mentioned only in passing in Daubert. Elaborating, the Court said that the Daubert factors -
testing, peer review, error rates, and acceptability - do not constitute a definitive checklist or test
and that the factors identified in Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert's particular expertise, and the subject of his
testimony. !d. at 150.

Daubert's Mythology

Ask most judges and trial lawyers what words come to mind when they hear "Daubert" and there
is a good chance they will respond "junk science" and "gatekeeper," as if these were the most
important or most memorable words from the opinion. These words have fed a popular
mythology: namely, that Daubert was intended to tum judges into expert opinion vigilantes who
would keep out all opinions that failed to get over a very high bar of reliability that the judge
would set in her own discretion.

Many might be surprised to learn that Daubert never used the expression ''junk science." The
closest it came was when it rejected an argument that it needed to retain the Frye rule in order to
prevent "befuddled juries" from being "confounded by absurd and irrational pseudoscientific
assertions." Daubert, 509 U.S. at 595. The Court expressed confidence in "the capabilities of the
jury, and of the adversary system generally," and pointed out that a judge can always direct a verdict
or grant summary judgment if a case rests on only a scintilla of evidence. !d. at 596.

And the reference to the judge as a gatekeeper appeared only three times, once in the body of the
opinion, once in a footnote, and once in a separate opinion by Chief Justice Rehnquist, joined by
Justice Stevens, concurring-in-part and dissenting-in-part.

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The majority's reference to gatekeeping was in a paragraph responding to an argument from the
petitioner and some amici, who urged an even more liberal standard than articulated by the Court,
one that would make room for today's scientific hypothesis, on the theory that today's hypothesis
could become tomorrow's scientific conclusion. Id. at 596-97. Responding to that argument, the
Court said:

The scientific project is advanced by broad and wide-ranging consideration of a multitude

of hypotheses, for those that are incorrect will eventually be shown to be so, and that in
itself is an advance. Conjectures that are probably wrong are of little use, however, in the
project of reaching a quick, fmal, and binding legal judgment-often of great
consequence-about a particular set of events in the past. We recognize that in practice, a
gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent
the jury from learning of authentic insights and innovations. That, nevertheless, is the
balance that is struck by Rules of Evidence designed not for the exhaustive search for
cosmic understanding but for the particularized resolution of legal disputes. (Id. at 597).

In other words, the Court merely noted that, when acting as a gatekeeper, a judge might "on
occasion" end up excluding an opinion that time may prove to be scientifically sound because, at
the moment, it is too early to tell.

In a footnote, id. at 589 n.7, the Court commented on the concurring/dissenting opinion, stating:

1HE CHIEF JUSTICE "do[es] not doubt that Rule 702 confides to the judge some gatekeeping
responsibility," post, at 4, but would neither say how it does so, nor explain what that role
entails. We believe the better course is to note the nature and source of the duty.

These were the only references to "gatekeeping" in the Daubert majority opinion.

In the concurring/dissenting opinion, Chief Justice Rehnquist said this, id. at 600-01:

I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in
deciding questions of the admissibility of proffered expert testimony. But I do not think it
imposes on them either the obligation or the authority to become amateur scientists in order
to perform that role.

It is difficult to draw the inference from these three gatekeeping references that the Court wanted
trial judges to ferret out all but the most reliable (in the judge's mind) expert testimony. If
anything, such an inference would conflict with these other statements from the opinion (all
internal quotation marks omitted):

• " ... a rigid general acceptance requirement would be at odds with the liberal thrust of
the Federal Rules and their general approach of relaxing the traditional barriers to opinion
testimony." Id. at 588.

• "Given the Rules' permissive backdrop and their inclusion of a specific rule on expert
testimony that does not mention general acceptance, the assertion that the Rules somehow
assimilated Frye is unconvincing. Frye made general acceptance the exclusive test for
admitting expert scientific testimony. That austere standard, absent from and incompatible
with the Federal Rules of Evidence, should not be applied in federal trials." Id. at 590.

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 • " ... it would be unreasonable to conclude that the subject of scientific testimony must
be known to a certainty; arguably, there are no certainties in science." ld at 590.

• "Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer
opinions, including those that are not based on first-hand knowledge or observation." !d. at
592.
• "The focus [of a judge's inquiry in determining admissibility of a scientific opinion], of
course, must be solely on principles and methodology, not on the conclusions that they
generate." Id at 595.

• "Respondent expresses apprehension that abandonment of general acceptance as the

exclusive requirement for admission will result in a free-for-all in which befuddled juries
are confounded by absurd and irrational pseudoscientific assertions. In this regard
respondent seems to us to be overly pessimistic about the capabilities of the jury, and of the
adversary system generally. Vigorous 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 595-96.

To be sure, the Court recognized there are "limits on the admissibility of purportedly scientific
evidence" and that the trial judge is not "disabled from screening such evidence." !d. at 589. But the
holding of the opinion, and its overall reasoning and emphasis, evinces a predisposition toward
liberality in the admissibility of scientific opinions and to let the jury figure out if the opinion should
be believed.

Kumho Tire's Attention To "Gatekeeping"

In contrast to Daubert, Kumho Tire referred to something akin to the expression "junk science,"
but not in the majority opinion. It appeared in Justice Scalia's concurring opinion and only once.
Referring to the trial judge's discretion to choose the "manner of testing expert reliability," Justice
Scalia said that a judge has "discretion to choose among reasonable means of excluding expertise
that isfausse and science that is junky." Kumho Tire, 526 U.S. at 159 (emphasis in opinion). In all
of Daubert and Kumho Tire, there is no other reference to any concern about ''junk science."

Kumho Tire used the term "gatekeeper" or "gatekeeping" eight times in the majority opinion,
once in Justice Scalia's concurring opinion, and not at all in a concurring opinion by Justice
Stevens. The first two parts of the majority's opinion, those that dealt with gatekeeping, focused
primarily on process. The narrow issue was whether, in determining the admissibility of an
engineer's non-scientific opinion, a trial judge may consider the factors mentioned in Daubert. In
the first part of the opinion, the Court explained that the gatekeeping function mentioned in
Daubert applies to all expert testimony, not just scientific testimony. Although the opinion goes
on at length to explain why this is so, no party contested the point. !d. at 147. In explaining its
reasons, the Court cited the language of the rule and the difficulty of distinguishing between
scientific and non-scientific expert testimony. Id at 147-49.

In the second part of the opinion, the Court held that the Daubert factors may be considered in
assessing the admissibility of opinions from engineers: "Emphasizing the word 'may' in the
question, we answer that question yes." !d. at 150. However, the Court emphasized that,
depending on the circumstances, the Daubert factors might not be appropriate, even when
considering scientific opinions:

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 The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and
for all time the applicability of the factors mentioned in Daubert, nor can we now do so
for subsets of cases categorized by category of expert or by kind of evidence. Too much
depends upon the particular circumstances of the particular case at issue....
Indeed, those factors do not all necessarily apply even in every instance in which the
reliability of scientific testimony is challenged. (Id. at 150-51 ).

Essentially, the Court expressed a preference neither for nor against the application of the
Daubert factors in any particular case. The Court also pointed out that the trial judge has
discretion in selecting the appropriate process for determining an opinion's admissibility,
including whether to require "special briefmg or other proceedings" or to dispense with such
proceedings altogether "in ordinary cases where the reliability of an expert's methods is properly
taken for granted." Id. at 152.

In the third part of the opinion, though not called for by the certiorari petition, the Court assessed
whether the trial judge abused his discretion in excluding the engineer's opinion. It answered that
question in the negative. Justice Stevens, in a partial dissent, pointed out that resolving that
question was unnecessary and unfair to the litigants, as it was not within the scope of the
certiorari petition. Id. at 159.

Kumho Tire, like Daubert, lacks any language creating narrow channels or high bars for expert
testimony. At no point did the Court express any concern that trial judges were allowing juries to
hear too many unreliable opinions or that the standard for admitting opinion testimony had been
tightened or even needed tightening. Nor did the Court express any view that opinions rooted in
science are presumptively more reliable or admissible than, or preferable to, those rooted in
experience. The Court acknowledged that "expertise ... based purely on experience, say, a
perfume tester able to distinguish among 140 odors at a sniff," can be just as acceptable as a
scientific opinion. Id. at 151. The Court offered this simple explanation of the gatekeeping
function: "to make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field." I d. at 152.

Daubert and Kumho Tire's Transformation From Mythology To Gospel

Though Daubert was intended to eliminate a high bar to the introduction of scientific evidence
and substitute a more forgiving, more liberal standard, and though Kumho Tire was intended
simply to let judges know they can, in some cases, use the Daubert factors to assess the
admissibility of non-scientific evidence, these two cases seem to have taken on an unusual life. In
a triumph of mythology over accuracy, the retelling of the story ofthese cases has assigned them
a different and unintended meaning that people seem to accept on faith: that Daubert was meant
to keep junk science out of the courtroom, that the only way to do that would be for judges to
scrutinize scientific opinions strictly and apply a high bar, and that Kumho Tire was meant to
apply the same high level of rigidity to non-scientific opinions as well.

Four years after Daubert was decided, Justice Stevens tried to debug this view when he said:

An example of "junk science" that should be excluded under Daubert as too unreliable
would be the testimony of a phrenologist who would purport to prove a defendant's future
dangerousness based on the contours of the defendant's skull.

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General Electric Co. v. Joiner, 522 U.S.l36, 153 n.6 (1997) (Stevens, J.) (concurring in part and
dissenting in part).

Still, a stroll through the internet shows that, in popular belief, Daubert has become synonymous
with the anti junk science theory of admissibility in which all opinion testimony of a scientific,
technical, or social scientific nature is subject to strict scrutiny and must get over a very high bar,
even though neither Daubert nor Kumho Tire says so. A representative sampling of this view of
Daubert includes:

• V. Schwartz & C. Silverman, The Draining of Daubert And The Recidivism Of

Junk Science In Federal And State Courts, 35 Hofstra L. Rev. 217, 221 (2006), in which
the authors construe Daubert as having mandated the application of "a strong and careful
judicial gatekeeper function" and argue that Daubert was intended to make it more
difficult to introduce expert evidence in order to keep junk science out of the courtroom.

• T. Gutheil & H. Bursztajn, Attorney Abuses of Daubert Hearings: Junk Science,

Junk Law, Or Just Plain Obstruction, available at
http://wwwjaapl.org/content/33/2/J50.full, in which the authors describe Daubert as
"focus[ing] attention on the problem of 'junk science' testimony in the courtroom" and as
part of "attempts by the judiciary, among other goals, to raise the level of expert
testimony available to the legal systein and to decrease the perceived problem of 'junk
science' testimony."

• Definition of"Daubert Test," appearing at http://legal-

ictionary.thefreedictionary.com/Daubert+Test, in which the statement is made that
Daubert "imposed a gatekeeping function on trial judges by charging them with
preventing 'junk science' from entering the courtroom as evidence."

• "Most of the state trial court judges surveyed believed that a purpose of Daubert
is to guard against junk science." C. Welch, Flexible Standards, Deferential Review:
Daubert's Legacy Of Confusion, 29 Harvard J. OfLaw & Public Policy 1085, 1101,
available at http://www.law. harvard. edu/ students/ orgs/jlpp/Vol29_No3 _ Welch.pdf.

• "Daubert is a stringent test requiring strict scrutiny of proffered expert

testimony" and Daubert was part of a three case trilogy that "dramatically tightened the
rules for the admissibility of expert evidence in federal courts" to "crackdown on 'junk'
expert testimony in federal courts." D. Bernstein, Disinterested in Daubert: State Courts
Lag Behind In Opposing 'Junk' Science, Legal Opinion Letter of the Washington Legal
Foundation (June 21, 2002), available at http://www.wlf.org/upload/6-21-
02Bernstein.pdf

This may well be a public relations triumph of sorts. Before Daubert, an aspect of tort reform was
a movement to raise the bar on expert testimony. If the bar could be raised, then it stood to reason
that the frequency and size of tort verdicts would be reduced. Those who sought this result argued
there was a problem with "junk science" in the courtroom and blamed this problem for allegedly
unjust jury verdicts and other social ills. See generally R. Ep~tein, A New Regime For Expert
Witnesses, 26 Valparaiso L. Rev. 757 (1992), available at
http://scholar.valpo.edu/vulr/vol26/iss3/5; P. Huber, Junk Science In The Courtroom, 26
Valparaiso L. Rev. 723 (1992) available athttp://scholar.valpo.edu/vulr/ vol26/iss3/4. See also V.
Schwartz & C. Silverman, The Draining of Daubert And The Recidivism Of Junk Science In
Federal And State Courts, 35 Hofstra L. Rev. 217, 224 (2006) ("It is not a coincidence that

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Daubert coincided with the emergence of toxic torts and the burgeoning use of experts in civil
litigation."). The exclusion of"junk science," therefore, became a handle on which to mount a
campaign for tougher admissibility standards.

When Daubert was decided, "all parties and amici claimed victory and satisfaction with the
decision." C. Welch, Flexible Standards, Deferential Review: Daubert's Legacy Of Confusion,
29 Harvard J. Law & Public Policy 1085, 1091 (2006), appearing at
http:llwww.law.harvard.edu/students/orgs/jlpp/ Vo/29 _]Vo3_Welch.pdf The Court's rejection of
the Frye standard as a requirement for scientific evidence and the Court's emphasis on the liberal
thrust of the rules of evidence gave reason for celebration to those who had an interest in expert
opinion reaching the jury. But the Court's failure to embrace any clear standard for admissibility,
and the Court's acknowledgement that judges need to apply some reliability standard, allowed
those who sought to raise the bar on expert testimony to claim that the ruling was a response to
the junk science problem.
Kumho Tire gave the tort reform movement more grist to claim that the standards for opinion
admissibility were now higher. Although the Court neglected to articulate any particular standard
for admissibility, the fact that the Court extended Daubert's reasoning to non-scientific opinions
meant - in the eyes of those who previously characterized Daubert as raising the bar on
admissibility- that the bar had just been raised on non-scientific opinions as well. The Court's
use of the neutral term "gatekeeper" was deemed to be further evidence of the Court's intent to
raise the bar, as if the job description of a "gatekeeper" is to shut the gate, overlooking that
gatekeepers open gates as well.

Needless to say, those who had an interest in characterizing Daubert and Kumho Tire as imposing
strict admissibility standards on all expert testimony were diligent in advancing that view, and
their diligence seems to have gotten more air time than the views of those who see those
decisions differently.

DAUBERT'S AND KUMHO TIRE'S TUMULTUOUS WAKE

With Daubert and Kumho Tire taking hold in the judicial psyche as some type of mandate to
apply strict scrutiny to all forms of expert opinion, how has opinion testimony fared? The sad
answer is: not as well as the Supreme Court undoubtedly had in mind when it attempted in
Daubert to liberalize the standard for scientific testimony. The examples below illustrate.

Mamah

In United States v. Mamah, 332 F.3d 475 (7th Cir. 2003), a Ghanian immigrant was convicted on a
drug charge based on a confession that the defendant claimed was false. The defendant claimed
the FBI threatened him with life imprisonment and that he would never see his children unless he
confessed. To support his false confession defense, the defendant offered testimony from two
experts, a sociologist and an anthropologist, to the effect that the defendant's experience in
Ghana, living under a repressive military regime and where he had been beaten in an
interrogation, made him more susceptible to giving false confessions. The anthropologist had
studied how Ghanians are prone to give false confessions when interrogated by authority figures.
The sociologist was an expert in the phenomenon of false confessions.

The judge excluded the expert testimony because neither of the experts were "psychologist[s]
qualified to assess Mamah's susceptibility to the interrogation techniques used by the FBI
agents." I d. at 4 76. The judge felt the defendant had been iiving in the United States long enough
to know the difference between Ghanian and American interrogation techniques, id., and that the

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anthropologist's opinion was unreliable because it did not rest on studies of false confessions
given by Ghanian expatriates who had lived in the United States for more than ten years. !d. at
478. The judge also felt that, unless the FBI's interrogation techniques were similar to those the
defendant had experienced in Ghana, the testimony was irrelevant, id. at 477, and that the
sociologist could not offer an opinion unless he had studied the propensity of an individual who
had been subjected to coercive interrogation on one occasion to give a false confession later when
the interrogation techniques were not coercive. !d. at 478. The Seventh Circuit affirmed the
decision to exclude the evidence for the reasons given by the judge.

Consider how impossibly high the trial judge and Seventh Circuit set the bar. The defendant had
been beaten in a past interrogation, was being interrogated again, and, according to him, had been
threatened with life in prison and never seeing his children unless he confessed. While it is
plausible to believe, as the trial and appellate judges did, that the defendant had been living here
long enough to know he would not be beaten, it is also plausible to believe that the intimidating
circumstances of his interrogation, coupled with his past interrogation experience in a repressive
military regime, could have been enough to scare him into giving a false confession. This was his
defense. It was a defense that was almost certain to fail absent expert testimony.

Yet his jury was never permitted to hear from those experts because the judges believed he
needed an expert who had studied others just like the person the defendant claimed to be:
Ghanian expatriates living in the United States for more than 10 years who had been previously
exposed to physically coercive interrogation techniques and who later gave false confessions
when exposed to non-physically coercive techniques. How likely is it that such a sample set
existed? If such a set existed, how likely is it a researcher could have found it? And if it could
have been found, how likely is it anyone actually would have done such studies on such a
peculiarly defined sample set?

The judges used a common qualification technique to disqualify the testimony: category
defmition. When the category of relevance is defined more narrowly, it becomes less likely
anyone or anything will qualify to be in it. Specialists on false confessions and on the propensity
to give false confessions to authority figures after being exposed to coercive interrogations in
repressive military regimes would, on the facts of this case, almost certainly' appear to be relevant
in a Rule 401 sense, where relevance is defined as that 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." (emphasis added) In Daubert, the Court said:
"The Rule's basic standard of relevance thus is a liberal one."

But by defming the category of relevance more narrowly -limiting it to those who have studied
persons having the defendant's specific unusual experience- the trial and appellate judges ensured
that the jury would never hear from the defense experts about circumstances that could move a
suspect to give a false confession. Wouldn't the better approach have been to let the jury hear the
evidence, let the governrnent cross-examine that evidence and present contrary expert evidence, and
let the jury decide how much weight to give it? Wouldn't that have been more consistent with the
liberal thrust of the rules of evidence and with Daubert's admonition of faith in the jury and
adversary system? In this criminal case, the defendant would have won ifhe had raised a
reasonable doubt about the voluntariness of his confession. But in defming the category of expert
relevance so narrowly, just a notch or two above the expertise of the defendant's experts, the trial
and appellate judges created an inappropriate high bar to the introduction of evidence that could
have produced reasonable doubt and an acquittal.

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Jodoin

A civil counterpart to Mamah is Jodoin v. Toyota Motor Corp., 284 F.3d 272 (1st Cir. 2002), where
the trial judge excluded an opinion from plaintiff's expert that the defendant's truck was defective
because it was prone to rolling over. The judge excluded the opinion because the expert based it on
a test of an exemplar vehicle that the plaintiff had not shown was ''virtually identical" to the
vehicle in the accident, given that a number of years had passed between the time the two
vehicles were made and the time of the accident. Id. at 275. The judge felt it was not enough that
the exemplar vehicle was the same make, model, and year of the accident vehicle. Rather, the
judge felt that a proper exemplar would have had needed a "virtually identical" history as the
accident vehicle, presumably including such things as repairs, wear and tear, and prior accidents.
I d. Although the expert testified that he examined everything he "thought ... would be related to
the vehicle dynamics and the issues that [he] was evaluating," id., the judge still excluded the
opinion for a lack of showing that the exemplar vehicle was virtually identical to the accident
vehicle.

This is another example of defining the category of relevance to exclude an expert's opinion. In
the judge's mind, the relevant category as a basis for comparison was not "same make, model,
and year," but rather ''virtually identical history," a higher bar that presumes no evidence of
relevance could be obtained from an examination of a vehicle having the same make, model, and
year unless its history was virtually identical to the vehicle in the accident.

Quite properly, the First Circuit vacated the judgment and held that the expert should have been
permitted to testifY, noting that the correct standard of admissibility was not virtual identity but
rather only whether ''the relevant elements are sufficiently similar" to afford a basis for
comparison. I d. at 280. The trial judge had set too high a bar by defining the category of
relevance too narrowly. The First Circuit lowered the bar in recognition of the fact that relevant
evidence need not depend on virtual identity. The Court "further emphasize[d] that other
differences are for defendants to highlight and the jury to weigh in its deliberations." Id.

Frazier

A common Daubert problem occurs when judges measure knowledge-based or experience-based

expertise against scientific standards, which can result in exclusion of the proffered opinion to the
detriment of civil plaintiffs and criminal defendants. Rule 702 (a) specifically allows opinion
testimony based on an expert's knowledge or experience, as distinguished from skill, training, or
education.

Nothing in this amendment [to Rule 702] is intended to suggest that experience alone--or
experience in conjunction with other knowledge, skill, training or education-may not
provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702
expressly contemplates that an expert may be qualified on the basis of experience. In
certain fields, experience is the predominant, if not sole, basis for a great deal of reliable
expert testimony.

Committee Notes On Rules- 2000 Amendment To Fed. R. Ev. 702. However, a number of trial
judges seek to hold experiential expertise to scientific standards, which do not aptly fit, and end
up excluding the proffered opinion, often with little corrective intervention at the appellate level.

10

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A case in point is United States v. Frazier, 387 F. 3d 1244 (11th Cir. 2004), a 49 page en bane
decision that included two concurring opinions and a dissent. At issue was the admissibility of an
opinion by an investigator to the effect that there was no forensic evidence to corroborate the
alleged victim's claim she had been raped and that this was not to be expected if such an event
had occurred. The alleged victim claimed she had been subject to a dozen violent sexual acts in
her car. All parties conceded that the evidence collection from the car, the alleged victim, and the
alleged victim's clothing was thorough, timely, and properly performed. No hairs or seminal fluid
from the defendant were found. The defendant denied any sexual contact and contended that the
alleged victim made up the story to avoid being punished by her parents for staying out late.

Defendant's expert would have testified, based on his experience including working on 150-250
sexual assault cases, that in crimes of the type claimed by the alleged victim, one would expect to
fmd some hair or seminal fluid from the defendant on the victim's person or clothing or in the car,
and that the absence of such hairs or fluids meant there was no forensic evidence to corroborate
that a rape had occurred. The trial judge excluded the opinion because the expert had no scientific
evidence or study indicating the percentage frequency in which a defendant's hairs or seminal
fluid are found in these types of occurrences. !d. at 1255. The judge then allowed two government
witnesses to testify that the absence of a defendant's hair or seminal fluid did not mean that no
sexual contact took place. !d. at 1257-58.

The defendant was convicted and sentenced to life in prison under a three-strike statute. A divided
three judge panel reversed the conviction, holding that the district court abused its discretion by
erroneously requiring scientific evidence as a prerequisite to the expert's testimony. See United
States V. Frazier, 322F.3d 1262 (11th Cir. 2003).
On en bane review, the Eleventh Circuit reinstated the conviction, based on applying scientific
standards of reliability to what was essentially an experience-based opinion. Though the expert's
qualifications were not in dispute, the panel characterized the expert's opinion as expressing "an
intrinsically probabilistic or quantitative idea," id. at 1265, and that:

Without knowing how frequently hair or seminal fluid is transferred during sexual
conduct in similar cases- whether derived from reliable studies or based on some
quantification derived from his own experience - it would be very difficult indeed for the
district court (or for that matter the jury) to make even an informed assessment, let alone
to verify that the recovery of hair or fluid evidence in this case "would be expected." Nor
could the district court tell from Tressel's testimony whether his opinions had been
subjected to peer review or, even, the percentage of cases in which his opinion had been
erroneous. Simply put, Tressel did not offer any hard information concerning the rates of
transfer of hair or fluids during sexual conduct. (/d.)

In a stinging and lengthy dissent, Judge Birch criticized the majority's insistence on requiring
scientific support for what was, at bottom, an experienced-based opinion, not dissimilar from
many opinions commonly deemed admissible and appropriate. Judge Birch cited United States v.
Brown, 7 F.3d 648 (7th Cir. 1993), as an example of a case in which an expert was permitted to
testify, based on experience, that a defendant intended to distribute cocaine, rather than use it for
personal use, because of paraphernalia and behaviors typically associated with distributors that
are different from those associated with mere users. After citing this and other examples of
opinions held admissible based on experience and knowledge without any supporting empirical
data, Judge Birch summarized his conclusion:

What physician, for example, would be laughed out of a medical conference for asserting
without supporting statistical data that he would expect the cause of classic flu-like

11

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 symptoms to be, of all things, the flu? Yet, this is precisely what the district court did in
response to Mr. Tressel's testimony based on the rather uncontroversial assumption in his
field that an experienced forensic investigator would expect to find hair or semen transfer
in a sexual assault of prolonged duration in cramped quarters where, as here, evidence
was gathered from an uncontaminated and confined crime scene. This ruling - requiring
an experience-based expert to substantiate his conclusions with scientific data or studies -
was an abuse of discretion. (!d. at 1300).

A comparison of Frazier to Brown leaves troubling questions: Why should a qualified

government witness be allowed to offer an experience-based opinion that cocaine distributors
typically are associated with certain types of paraphernalia and behaviors, while a qualified
defense witness is not allowed to offer an experienced-based opinion that rapists typically leave
hairs or seminal fluids on their victim or at the scene of the crime. Why is empirical data excused
in the first instance but required in the second? Why should a defendant who denies his guilt risk
life in prison because he lacks empirical data to support his expert's experience-based opinion
when the absence of empirical data does not bar the government's expert from offering
experience-based testimony to convict a defendant? Is there is a de facto double standard, where
opinions offered by the government are treated more indulgently than those offered by a criminal
defendant?

Stevenson

Another example ofthe type of indulgence given to government experts can be found in
Stevenson v. Texas, 304 S.W.3d 603 (Tex. Ct. App. 201 0), where a forensic video analyst was
allowed to narrate and characterize what was depicted in a shadowy video of a convenience store
robbery, based on experience in interpreting video images. The expert was permitted to testifY,
for example, that a particular shadowy image was money, that another one was a gun, and that the
man holding the gun was over 5'8" probably by several inches. Id. at 610. His technique was
simply to watch the video repetitively until he figured out what the shadowy images were. Id. at
621-22. One wonders whether a similar defense expert, looking at the same shadowy ambiguous
images, would have been permitted to testifY that the alleged gun was a wallet and that the
alleged money was a candy bar or pack of cigarettes.

Walker

These Daubert issues are not confined to criminal cases. In Walker v. Soo Line RR, 208 F.3d 581
(7th Cir. 2000), a plaintiff sued for injuries sustained allegedly on account of a lightning strike
while working in a railroad tower. The defendant was asserted to be liable for improperly
protecting the tower from lightning strikes. There was a disputed factual issue over whether
lightning struck the tower directly, entered the tower through a strike elsewhere in the yard, or
even struck the yard at all. The trial judge excluded an electrical safety expert from offering an
opinion to the effect that lightning could have penetrated the tower in one of three ways. The
expert conceded that he could not opine on whether lightning struck the tower at all or whether it
struck the railroad yard or even, had it struck in the area, whether it would have injured the
plaintiff. At most, he could only identifY three paths to the tower that lightning might have
traveled if it had hit the area. The judge barred the expert from testifYing on the ground his
opinion was too speculative.

Fortunately for the plaintiff, the Seventh Circuit reversed and remanded, holding that the judge
erred in excluding the expert's testimony. Despite the limited utility of the expert's opinion, the
Seventh Circuit noted that the jury would have been aided in learning the different ways the tower

12

329
might have been struck, if it had been struck at all. The Court's identification of aid-to-the-jury as
a reason for reversal was important, because Rule 401 makes testimony relevant if it is of
consequence to the action and if it has any tendency to make the fact more or less probable than
without the evidence. As the Advisory Committee Notes on Rule 401 state: "The fact to be
proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of
consequence in the determination of the action." Thus, the fact that the expert could not opine on
whether lightning hit the tower or even in the area, as the Seventh Circuit noted, did not render
the opinion inadmissible: the jury could have considered that opinion, in conjunction with
eyewitness testimony or meteorological evidence, to resolve the factual dispute whether lightning
had penetrated the tower. The Seventh Circuit also correctly noted that an expert's opinion need
not posit only one model to explain the conclusion. Alternate models may be offered. Id. at 589-
90.

CONCLUSION

Sadly the above examples are not anomalies. In the two decades following Daubert, the judicial
landscape has been littered with inconsistent and poorly reasoned decisions admitting or
excluding expert testimony. Part of the problem stems from Daubert's statement that the inquiry
on admissibility is flexible. Part of the problem stems from the misperception that Daubert raised
the bar on admissibility; that it did so to insulate courtrooms from junk science; and that Kumho
Tire extended this same heightened standard to all expert testimony. Part of the problem stems
from the Supreme Court's decision in General Electric that appellate judges should review
admissibility determinations under an abuse of discretion standard.

The combination of these factors has created a regime where admissibility determinations are
difficult to predict, where they vary from court to court and judge to judge, where a judge will
either exclude an opinion that deserves to be considered by the jury or allow a jury to hear an
opinion that has no business being in a courtroom, and where the prospects for obtaining relief on
appeal are limited. To be sure, there are many instances in which the admissibility decision is
correct. But this is cold comfort for those who are turned out of court, or convicted and
imprisoned, because a judge has applied a needlessly high or excessively low bar when
determining the admissibility of an opinion.

13

330
ABOUT THE AUTHOR

Kenneth R. Berman

Kenneth R. Berman is a partner in the Litigation Department of the Boston law firm Nutter
McClennen & Fish LLP. His practice focuses on complex business and commercial disputes,
intellectual property litigation, land use litigation, and international sales transactions.

Mr. Berman is admitted to practice in Massachusetts and before the United States Supreme Court,
the United States Court of Appeals for the First, Fourth, and Federal Circuits, and the United
States District Courts for the District of Massachusetts and the Eastern District of Michigan.
Mr. Berman frequently writes and lectures for local and national audiences on topics of current
legal interest, high profile litigation, and advanced litigation techniques. He previously served as
a legal commentator for WBZ-TV in Boston, and serves on the Board of Editors of the Boston
Bar Journal. Mr. Berman's articles have appeared in Litigation (the Journal of the Litigation
Section of the American Bar Association), the National Law Journal, and the Boston Globe,
among other publications.

Mr. Berman is an active member of the American Bar Association and Boston Bar Associations.
In the American Bar Association, he is a member of the Litigation Section, where he serves as
Co-Chair ofthe Business Torts Litigation Committee, and member of the Corporate Counsel,
Commercial And Business, Intellectual Property, and Trial Practice Committees. He is a former
member of the Boston Bar Association's Council and Executive Committee, and a former chair of
the Boston Bar Association's Litigation Section and Torts Committee. Mr. Berman is a former
chair of the Massachusetts Joint Bar Committee on Judicial Nominations, which reviews,
evaluates, and makes recommendations on the qualifications of individuals under consideration
for judicial appointments in Massachusetts.

Kenneth Berman received a J.D. degree with high honors, from the University Of Connecticut
School Of Law where he was an editor of the Connecticut Law Review. He received a B.A. from
Yale University.

Kenneth R. Berman
Nutter McClennen & Fish LLP
World Trade Center West
155 Seaport Boulevard
Boston, Massachusetts 02210
(617) 439-2542
[email protected]

14

331
 
 
 
 

332
A SUMMARY OF THE PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF CIVIL PROCEDURE

by

KATHRYN CARNEY COLE, ESQ.

Farrell Fritz, P.C.

New York City

333
334
 

A Summary of the Proposed Amendments to the Federal Rules of Civil Procedure

By:
Kathryn C. Cole1

Amendments to certain of the Federal Rules of Civil Procedure (the “Rules”) have been
proposed by the body charged with overseeing the development of the Federal Rules -- The
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States
(the “Committee”).2 The proposed amendments originated during a 2010 conference at Duke
University Law School that was intended to facilitate changes that would further the goals of the
Rules: “to secure the just, speedy, and inexpensive determination of every action.”3 At its June
meeting, the Committee unanimously approved for publication and public comment the proposed
amendments to the Rules. Subject to Supreme Court approval and inaction by Congress, the
proposed amendments will become effective on December 1, 2015.

Generally speaking, the proposed amendments reflect efforts to: (1) encourage early and
effective judicial case management in civil litigations; (2) enhance the means of keeping the
discovery proportional to the underlying action; and (3) advance cooperation among counsel to a
given litigation. Draft versions of the proposed amended rules are available for public comment
through February 15, 2014.4 This article will not address each proposed amendment but instead
summarizes below some of the more noteworthy proposals for individuals practicing in the
Federal courts.

Amendments to Effectuate Early and Effective Case Management

The proposed amendments to Rules 4, 16, 26 and 34 seem to reflect a growing

perception that the early stages of a civil litigation often take too long. This, in turn, can
result in unnecessary costs associated with the litigation. As a result, a number of
amendments designed to accelerate the litigation process have been proposed. Included in
these proposals is the Committee’s recommendation to revise Rule 4(m) such that the time to
serve the summons and complaint would be shortened from 120 days to 60 days. Irrespective of

                                                            
1
 Kathryn Carney Cole is Counsel at the law firm of Farrell Fritz, P.C. in New York, where she concentrates on
complex commercial litigation. She can be reached at [email protected] From 2004-2006, Ms. Cole was a law
clerk to the Honorable Richard C. Wesley, who is at Judge at the United States Court of Appeals for the Second
Circuit.
2
Specifically, amendments to each of Civil Rule 1, 4, 16, 26, 30, 31, 33, 34, 36 and 37 have been proposed.
3
See more at: http://law.duke.edu/news/duke-lends-name-amendment-proposals-federal-rules-civil-
procedure/#sthash.z4evD8Il.dpuf
4
A copy of the draft amendments are available at: http://www.uscourts.gov/uscourts/rules/preliminary-draft-
proposed-amendments.pdf

 
335
 

the amendment, the Court would retain the right to extend the amount of time in which the
Plaintiff must effectuate service if the Plaintiff shows good cause.5

Another Rule 16(b) is subject to proposed amendments. Currently, Rule 16(b)(2)

provides that a judge must issue the scheduling order within the earlier of 120 days after any
defendant has been served or 90 days after any defendant has appeared.6 The Committee is
recommending, however, that a judge issue the scheduling order within the earlier of “90 days
after any defendant is served or 60 days after any defendant appears” although the judge may
extend the time on finding good cause for delay.7 Additionally, current Rule 16(b)(1)(B)
authorizes the issuance of a scheduling order after receipt of the parties’ Rule 26(f) report or after
consulting “at a scheduling conference by telephone, mail, or other means.”8 A proposed
amendment, however, strikes “mail, or other means” and instead proposes the conference occur
by a direct communication including face-to-face, by telephone or by other means of
simultaneous communication.9 Finally, there is also pending a proposal to add a new Rule
16(b)(3)(v), permitting a scheduling order to “direct that before moving for an order relating to
discovery the movant must request a conference with the court.”10 While similar provisions can
often be found in a Judge’s local rules – especially here in the Eastern and Southern Districts of
New York – this amendment would harmonize the authority of the federal bench to require such
a conference which, it is believed, could prevent unnecessary, costly and time-consuming
discovery motion practice.

Rule 26 is also subject to a number of proposed amendments including providing for a party
to request certain limited disclosure before the Rule 26(f) conference. Specifically, the proposal
at Rule 26(d)(1) allows for Rule 34 Requests to Produce to be made in advance of the Rule 26(f)
conference in order to facilitate a meaningful 26(f) conference by allowing for consideration of
actual – as compared to hypothetical – discovery demands. Notwithstanding the early request
for disclosure, under the proposal the requests would be deemed served at the first Rule 26(f)
conference,11with the time to respond 30 days thereafter.12

                                                            
5
Additionally, the proposed amendment is not intended to apply to service in a foreign country under current Rule
4(f) or 4(j)(1), or to service of a notice in a condemnation action pursuant to Rule 71.1(d)(3)(A).
6
Rule 16(b).
7
See http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf at pgs. 261, 285.
8
Fed. R. Civ. P. 16(b)(1)(B).
9
http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf at pgs. 262, 284.
10
Id. at 286.
11
See proposed 26(d)(2)(B) available at: http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-
amendments.pdf, pg. 294.
12
See Fed. R. Civ. P. 34(b)(2)(A).

 
336
 

Amendments to Ensure Proportionality in the Use of Discovery:

There are a number of proposed amendments that seek to promote the responsible use of
discovery in a way that is proportional to the needs of a specific case. Specifically, the
Committee has recommended revising the scope of discovery defined in Rule 26(b)(1) “by
transferring the analysis required by present Rule 26(b)(2)(C)(iii) to become a limit on the
scope of discovery, so that discovery must be

proportional to the needs of the case considering the amount in controversy, the
importance of the issues at stake in the action, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its benefit.13

Current Rule 26 allows a party to pursue discovery requests that are “reasonably calculated
to lead to the discovery of admissible evidence.”14 That broad language, which can lead to an
unnecessarily wide scope of permissible discovery, is a significant factor in the rise of discovery
costs. Another proposed change to Rule 26(c)(1)(B) is to include an explicit recognition of the
Court’s present authority to enter a protective order allocating the expenses of discovery.

Additional proposed amendments directed at proportionality in discovery include:

reducing the presumptive number of depositions from 10 to five (Rules 30 and 31);
limiting the presumptive duration of each deposition from one day consisting of seven
hours to one day consisting of six hours (Rule 30(d)(1));
reducing the number of interrogatories from “no more than 25 written interrogatories,
including all discrete subparts” to “no more than 15…” (Rule 33(a)(1));
adding a presumptive limit of 25 to requests to admit – which currently have no
presumptive limitation;15
requiring that the grounds for objecting to a request for production be stated with
specificity (Rule 34(b)(2)(B));
requiring that an objection to a request for production state whether any responsive
materials are being withheld on the basis of that objection (Rule 34(b)(2)(C)); and
adding that if a party elects to produce materials rather than permit inspection in response
to a request for production, directing that party to state that copies will be produced, and
production will be completed no later than the time for inspection stated in the request or
a later reasonable time stated in the response. The current rule does not indicate when
production must occur.

                                                            
13
http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf at pg. 265.
14
Fed. R. Civ. P. Rule 26(b)(1).
15
Expressly exempted from the proposed limitation, however, are requests to admit the genuineness of documents.
Id. at 269. This presumptive limitation may be increased by stipulation of the parties or court order. Id.

 
337
 

Proposed Amendments Aimed at Increasing Cooperation Between Attorneys

The Committee has also proposed a number of amendments intended to increase

cooperation among attorneys. Indeed, the Committee indicated that hyper-adversarial behavior
often increases litigation costs quickly and exponentially.16 An initial proposal is a modest
addition to Rule 1 that would state the rules “are employed by the court and the parties” to
demonstrate that the parties are to share in the responsibility for achieving the aspirations
espoused in Rule 1.17

Additional amendments are suggested for Rule 37(e). Specifically, one proposal focuses
upon the failure to preserve information and aims to cloak the court with specific curative
measures and sanctions. As proposed, Rule 37(e) would provide conformity throughout the
federal courts by allowing certain specific sanctions, certain specific curative measures or an
adverse inference jury instruction only where the party’s actions caused substantial prejudice and
were willful or in bad faith, or where they “irreparably deprived a party of any meaningful
opportunity to present or defend against the claims in the litigation.”18 The proposed revisions to
Rule 37 also enunciate factors for the court to consider in determining if a party failed to fulfill
its preservation obligations, if that failure was willful or in bad faith. These factors include:

The extent to which the party was on notice that litigation was likely and that the
information would be discoverable;
The reasonableness of the party’s efforts to preserve the information;
Whether the party received a request to preserve information, whether the request was
clear and reasonable and whether the person who made it and the party consulted in good
faith about the scope of preservation;
The proportionality of the preservation efforts to any anticipated or ongoing litigation;
and
Whether the party timely sought the court’s guidance on any unresolved disputes about
preserving discoverable information.19

As the foregoing summary illustrates, many of the proposed amendments are quite far
reaching and could have a substantial impact on federal practitioners, particularly insofar as
discovery practices are concerned.

                                                            
16
Id.
17
Id. at pgs. 270, 281.
18
Id. at pgs. 272-73, 315.
19
Id. at pgs. 316-17. 

 
338
PROGRAM FACULTY BIOGRAPHIES

339
340
 Overall Statewide Program Planning Chair

Richard B. Friedman, Esq.

McKenna Long & Aldridge LLP
New York City

Experience
Richard B. Friedman handles complex commercial, real estate, and construction litigation,
arbitration, and mediation matters for public and closely held corporations in New York federal
and state trial and appellate courts and other venues. Mr. Friedman has a particularly active
practice in the New York County Commercial Division, of which he is one of the fifteen or so
judicially appointed members of the Advisory Committee on which he serves with the nine
members of that court.

Mr. Friedman's recent cases have involved:

 Contract disputes (including options and construction-related agreements) and business torts;
 Real estate and construction litigations; and
 Enforcement of substantial monetary judgments.

As a former senior in-house litigator and the former owner of a legal cost management company,
Mr. Friedman is extremely sensitive to client fee issues. He is co-chair of the Litigation
Department’s Alternative Fee Arrangements Committee and was instrumental in the 2013 rollout
of MLAdvantage, a practice philosophy that emphasizes delivering superior value to clients
within certain timing and budget parameters using legal project management, knowledge
management, professional development, enhanced technology, resource management, alternative
fee arrangements, and direct cost containment. In addition, as the co-founder and co-chairman of
the In-house/Outside Counsel Committee of the New York County Lawyers’ Association and the
former founding co-chair of similar committees of the New York State Bar Association and the
New York City Bar Association, Mr. Friedman is actively involved in addressing issues that
concern in-house counsel and bridging differences between such lawyers and their law firm
counterparts.

Notable Engagements

 Obtained a monetary recovery on a counterclaim on behalf of a national builder of military

housing in connection with a dispute at one of the nation’s foremost military academies.
 Obtained numerous favorable decisions from a New York federal court and two such
decisions from the United States Court of Appeals for the Second Circuit on behalf of a
worldwide pharmaceuticals company seeking to enforce multimillion dollar judgments.
 Obtained a multimillion dollar post-closing arbitration award on behalf of a large paper
manufacturing company.
 Obtained breach of contract judgments on behalf of a national electronics equipment
manufacturer against various entities.

341
 Obtained a favorable mediated settlement on behalf of a national real estate mortgage
brokerage company in a multimillion dollar lawsuit filed in federal court in Michigan which
resulted in no out-of-pocket payment by the client.
 Serve as company counsel in a case brought by its former chief operating officer alleging that
he is entitled to tens of millions of dollars in connection with an option agreement.
Successfully vacated a jury demand and defeated efforts to disqualify counsel.

Education

 J.D., University of Chicago Law School

 B.A., Cornell University, magna cum laude (with distinction in all subjects)

Bar Admissions

 New York

Court Admissions

 U.S. Court of Appeals for the Second Circuit

 U.S. Court of Appeals for the Third Circuit
 U.S. District Court for the Eastern District of Michigan
 U.S. District Court for the Eastern District of New York
 U.S. District Court for the Southern District of New York

342
MELVILLE FACULTY BIOGRAPHIES

343
344
 JAMES M. WICKS
Member
Farrell Fritz, P.C.
1320 RXR Plaza
Uniondale, New York 11556

Partner concentrating in business and commercial litigation, also General Counsel of

Farrell Fritz, P.C. He represents large and small businesses, financial institutions and individuals
in federal and state trial courts, as well as in arbitrations involving a variety of commercial,
technology, real estate, insurance, contracts, banking issues, business torts, business dissolutions
and breakups, franchise litigation, corporate governance and derivative and class actions. He
also represents developers and landowners in connection with real estate disputes, including
sale/leaseback disputes, environmental cleanup actions, foreclosures, broker disputes, boundary
and adverse possession disputes, and counsels and litigates issues involving attorneys and ethics.
Mr. Wicks is a frequent lecturer and author of many articles.

Work Experience

Farrell Fritz, P.C., 1320 RXR Plaza Uniondale, New York, 11556 1996 - Present

Dewey Ballantine, LLP, 1301 Avenue of the Americas, New York 10019 1995

White & Case, LLP, 1155 Avenue of the Americas, New York 10036 1992 - 1994

Law Clerk to the Honorable Arthur D. Spatt,

U.S. District Court for the Eastern District of New York 1990 – 1991

Adjunct Professor – St. John’s University School of Law 2005 - Present

Education/Court Admissions

- Juris Doctor degree from St. John's University School of Law

- Bachelor of Arts degree from Wheeling College
- Admitted to practice in the Courts of the States of New York and Connecticut
- United States District Courts for the Eastern, Southern and Northern Districts of New York
- United States Court of Appeals for the Second Circuit
- United States Court of Appeals Tenth Circuit Court
- Supreme Court of the United States

Professional Appointments & Affiliations

- Appointed to New York Federal Judicial Council Advisory Committee

- Appointed to the New York State Judicial Institute on Professionalism in the Law
- Appointed to the S.D.N.Y./E.D.N.Y. Joint Committee on Local Rules
- Appointed to the New York State Bar Association's (NYSBA) Task Force on the State of
Our Courthouses
- Fellowship in the Litigation Counsel of America (LCA)
- Life Fellow of the New York Bar Foundation
- Co-Chair of the Ethics and Professionalism Committee and a member of the Executive
345
 Committee of the NYSBA's Section on Commercial and Federal Litigation
- Member of the Federal Bar Council's Central Islip United States Courthouse Committee
and the Eastern District Committee on Civil Litigation
- Member of the International Association of Independent Private Sector Inspectors
General (IAIPSIG)
- Past President of the Theodore Roosevelt American Inn of Court
- American Bar Association
- Nassau County Bar Association
- Association of the Bar of the City of New York
- Judicial Screening Committee of the Suffolk County Bar Association (2010 - present)

Awards/honors/recognitions

- New York Super Lawyers - Metro lists (Business Litigation) - 2008, 2009, 2010, 2011,2012 and
2013
-Metro NY Top 100 Lawyer for 2013 by New York Super Lawyers
- Inclusion in 2009 Super Lawyers - Corporate Counsel Edition as a "Top Attorney in
Business Litigation."
- LI Pulse Magazine, "2012 Top Legal Eagle - Commercial Litigation"

Not-for-Profit Service

- Chairman of the Board of the Long Island Museum of American Art, History & Carriages
- Chairman of the Board of the School for Language and Communication Development
- Member of the Board of the Nassau Aviators Wheelchair Sports Association

Writing/editing/teaching activities

- Adjunct Professor of Law at St. John's University School of Law (2005 - present)
- Frequent contributor to Farrell Fritz's New York Commercial Division Case Compendium blog
- Authors a column, "Federal Practice Update," for The Suffolk Lawyer
- Member of the Editorial Advisory Board of the treatise, New York Civil Practice Before Trial
(James Publ.)
- Past Editor of the St. John's Law Review

Blog

- Co-author of Commercial Litigation Compendium Blog, found at

www.nycommdivcompendium.com.

346
2
 PETER J. AUSILI, ESQ.

Peter J. Ausili is a law clerk to United States District Judge Leonard D.

Wexler of the United States District Court for the Eastern District of New York.
He was an associate with Weil, Gotshal & Manges and Kaye, Scholer, Fierman,
Hays & Handler in New York City. His practice has included commercial
litigation and white collar criminal defense. He graduated magna cum laude from
St. John’s University School of Law, where he was Notes & Comments Editor of
the law review.

Mr. Ausili is a member of the Eastern District’s Committee on Civil

Litigation. He is a member of various legal organizations, including the Federal
Bar Council and the Suffolk County Bar Association, where he formerly served as
a Director, Officer of the Suffolk Academy of Law, Co-Chair of the Federal Court
and Labor & Employment Law Committees, and Assistant Legal Articles Editor of
the Suffolk Lawyer.

Mr. Ausili serves as an adjunct professor at Touro Law School, teaching

Evidence and Pretrial Litigation. He has lectured extensively on federal courts
and federal practice and has published various articles on federal courts, federal
practice, and other topics in the New York Law Journal, the Suffolk Lawyer, and
various law reviews. He also lectures on other topics, including products liability,
ethics, legal writing, and courtroom technology.

Mr. Ausili also participates in various civic, community, and sports-related

organizations. He is a referee of various sports, and he has appeared in regional
and New York International Fringe Festival theater productions.

347
Michael Cardello III, Esq. 
Moritt Hock & Hamroff LLP 
Garden City

Michael Cardello III is a partner with the firm and serves as Co-Chair of the firm’s Litigation practice
group. He concentrates his practice in business and commercial litigation. Prior to joining the firm in
1997, Mr. Cardello served as a Law Clerk to the Honorable Arthur D. Spatt, United States District
Court for the Eastern District of New York.

Mr. Cardello represents large and small businesses, financial institutions and individuals in Federal and
State Courts. He has a wide-range of experience that includes trials and appellate work in the areas of
corporate disputes, shareholder derivative actions, dissolutions, construction disputes, equipment and
vehicle leasing disputes and other complex commercial and business disputes.

Mr. Cardello is often appointed as a Discovery Referee and Special Referee by various courts to
oversee all aspects of the discovery process in complex commercial cases. From 2005 through 2008,
he oversaw all aspects of discovery in Delta Financial Corp. v. Morrison, in which he rendered many
written decisions related to discovery e-discovery and privilege issues and presided over sixty-five
depositions. He is currently appointed to a number of cases as Discovery Referee and Special Referee
by Justices of the Supreme Court for the State of New York. He is also approved by the Officer of
Court Administration in the State of New York to serve as a Receiver and has been appointed by the
Court as Receiver to oversee the dissolution and wind up of the affairs of a business and for the
collection of rent for commercial property.
Mr. Cardello currently serves as Chairman of the Commercial Litigation Committee of the Nassau
County Bar Association and is also a member of its Alternative Dispute Resolution, Federal Court and
Judiciary Committees. In addition, he is a participant at the Sedona Conference and also frequently
lectures on discovery, trial practice, equipment and vehicle leasing issues and e-discovery.

348
 D. Daniel Engstrand, Jr., Esq.
DONIGER & ENGSTRAND, LLP
12 Bayview Avenue
P.O. Box 575
Northport, NY 11768
631.262.7400
[email protected]
Dan Engstrand, Esq. is a partner in the litigation firm of Doniger & Engstrand, LLP,
located in Northport, NY. Formerly a litigator with the law firm of Sullivan &
Cromwell, Senior Trial Attorney for the Special Litigation Medical Malpractice
(SLAMM) Unit for the N.Y.C. Law Department and Special Assistant District Attorney
with the New York County District Attorney’s Office, Dan Engstrand has tried
numerous complex cases to verdict in both the state and federal courts of New York.
Dan Engstrand has argued before the United States Court of Appeals for the Second
Circuit as well as the New York State Appellate Courts for the First and Second
Departments.

His law firm presently concentrates on all aspects of trial practice in the fields of
Personal Injury; Medical Malpractice; Section 1983 Federal Civil Rights Litigation;
Civil RICO Litigation; Identity Theft; and Commercial Litigation.

As an active participant in the Suffolk and Nassau County communities, Dan

Engstrand’s pro bono activities involve having been corporate counsel for the past
13 years to Smithtown Hunt, Inc., one of Suffolk’s oldest non-profit, 501(c)(3),
organizations which, for the past 100 years, has been dedicated to preserving Long
Island’s land and natural resources. Other pro bono activities include being
corporate counsel to The Long Island Spinal Cord Foundation, a 501(c)(3)
organization based in Suffolk and dedicated to finding a cure for spinal cord injuries.
In addition, Dan Engstrand is also a volunteer attorney advisor with the N.Y.S.
Annual High School Mock Trial Tournament through the Nassau Academy of Law
and a Judge on the NITA Law School National Trial Competitions.

Dan Engstrand is currently an Executive Director of the Alexander Hamilton

American Inns of Court and a former Officer with the Suffolk Academy of Law.

Dan Engstrand is a frequent lecturer at both the Suffolk and Nassau County Bar
Associations in the fields of Federal Trial Practice, Identity Theft, New York Trial
Practice and IRC §501(c)(3) Charitable Organizations. In addition, he has taught
Advanced Trial Advocacy for over ten years as an adjunct professor of law at his
alma mater, St. John’s University School of Law, where he graduated magna cum
laude.

349
Patrick McCormick, Esq. 
Campolo, Middleton, & McCormick, LLP 
Bohemia 
Patrick McCormick is a partner at Campolo, Middleton & McCormick, LLP and heads up the firm's commercial litigation and
appellate practice. He specializes in litigating all types of complex commercial and real estate matters. He provides legal
counsel to clients on issues including: business disputes related to contract claims; disputes over employment agreements
and restrictive and non-compete covenants; corporate and partnership dissolutions; mechanics liens; trade secrets;
insurance claims; real estate title claims; complex mortgage foreclosure cases and lease disputes.

Patrick also handles high level criminal appeals, as well as civil appeals for the firm. Representing clients in both federal and
state courts at trial and appellate levels, McCormick has argued numerous appeals, including 2 arguments at the New York
Court of Appeals -- New York State's highest court.

Additionally, McCormick heads up the firms' Landlord-Tenant Practice, with his experience handling commercial and
residential landlord/tenant matters and representing both landlords and tenants. His broad range of services in landlord-
tenant litigation includes such services as lease and contract drafting and review, eviction and holdover actions, nonpayment
proceedings, rent collection, lease violations, security deposits, habitability issues and environmental matters.

In 1985, he earned his Bachelor of Arts Degree from Fordham University. In 1988, he graduated from St. John's University
School of Law. His diversified legal career spans 24 years including serving four years as an Assistant District Attorney in
the Bronx where he prosecuted felony matters and appeals and conducted preliminary felony and homicide investigations at
crime scenes.

McCormick is admitted to practice in the state of New York, as well as the United States Court of Appeals for the Second
Circuit and United States District Court, Southern and Eastern Districts of New York.

McCormick is an Adjunct Professor of Law at Hofstra University School of Law. He regularly contributes articles to the
Suffolk Lawyer discussing recent cases in Landlord Tenant Law and publishes a monthly blog. He is a member the Suffolk
County Bar Association, serves as President for Child Abuse Protective Services (CAPS) and serves on the Board of
Directors for Developmental Disabilities Institute (DDI).

Education
Fordham University, B.A.
St. John's University School of Law, J.D.

Admissions
New York State
United States Court of Appeals, Second Circuit
US District Court, Southern District of New York
US District Court, Eastern District of New York

Recognitions
2011 - Who's Who in Commercial Real Estate Law Long Island Business News

Boards/Associations
President of Child Abuse Prevention Services (CAPS)
Board Member of Developmental Disabilities Institute (DDI)
Member of the Suffolk County Bar Association
Associate Member of the Long Island Builders Institute
CLE Lecturer at Suffolk Academy of Law
Alexander Hamilton Inn of Court

Representative Matters
RICO Litigation
Represented victim of $70M fraud in federal RICO case.
Real Estate Litigation
Represent high end property developer in claims against partners related to ownership and interest in development project.
Litigation
Represented national commercial shopping center in settling property disputes.
Real Estate Contracts
Represented publicly traded home builder related to contractor disputes. 

350
 John P. McEntee
Farrell Fritz, P.C.
1320 RXR Plaza
Uniondale, NY 11556
516-227-0608
[email protected]

Mr. McEntee is a litigation partner at Farrell Fritz, P.C. He concentrates his practice in
commercial litigation at the trial and appellate levels, representing public and private companies,
financial institutions, universities, professional sports franchises, partnerships, and individuals in
a broad variety of business disputes.

Mr. McEntee is the President-Elect of the Nassau County Bar Association. He is also a member
of the House of Delegates and Nominating Committee of the New York State Bar Association, a
Fellow of the New York State Bar Foundation, a member of the Board of Directors of the
Federal Bar Association, Eastern District of New York Chapter, and a member of the Board of
Trustees of Molloy College.

Mr. McEntee served as an Assistant District Attorney in Nassau County (District Court, County
Court, and Rackets Bureaus) and as an Assistant Deputy Attorney General with the New York
State Organized Crime Task Force.

Mr. McEntee has been selected for inclusion in the New York Super Lawyers® -Metro Edition
(Business Litigation and Employment Discrimination Defense), is included in the Bar Register
of Preeminent Attorneys published by LexisNexis Martindale-Hubbell, is an elected Fellow of
the Litigation Counsel of America, and was recognized by the New York Law Journal for having
obtained the highest jury verdict in New York State in 2002.

Mr. McEntee has twice been selected by the Long Island Business News as one of twenty-five
attorneys in its listing of "Who's Who in Law" on Long Island. He is a co-author of Commercial
Litigation Strategies published in 2008 by Aspatore Books, a division of Thomson Reuters, and
serves as a member of the Advisory Board of the Commercial Law WebAdvisor.

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Magistrate Judge A. Kathleen Tomlinson
Kathleen Tomlinson was appointed a United States Magistrate Judge on February 24,
2006. She received a B.A. in English and Sociology magna cum laude from Rutgers
University in 1972 and an M.A. in English and American Literature from Long Island
University in 1975. For 14 years, Judge Tomlinson served L.I.U. as an academic
administrator and rose to the position of Assistant University Dean for the Faculty of
Arts and Sciences with responsibilities spanning the six campuses of L.I.U. She was
also an adjunct faculty member in the English Department.

After graduating from St. John's University Law School in 1987, Judge Tomlinson joined
the Appeals Bureau of the Nassau County Legal Aid Society. She then served as a
federal law clerk to United States District Judge Arthur D. Spatt. In 1991, Judge
Tomlinson entered private practice at Farrell Fritz, P.C. in Uniondale, New York where
she became a partner in 1998 and served as Chair of the firm’s Pro Bono Committee.
Her practice concentrated in complex litigation, labor and employment law, white collar
defense and civil rights litigation in the state and federal trial and appellate courts.

In addition to her prior work as a member of the Criminal Justice Act Panel for the
Eastern District, Judge Tomlinson previously served as counsel to the Eastern District's
Board of Judges Grievance Committee and the Magistrate Judge Merit Selection Panel
for the District. She is a past Director of the Nassau County Bar Association and served
as a board member of the Long Island Fund for Women and Girls from 1999 through
2005. Prior to taking the bench in 2006, Judge Tomlinson received the Suffolk County
Bar Foundation/Nassau Suffolk Law Services “Outstretched Hands of Justice” Award for
her pro bono endeavors.

Judge Tomlinson is a member of the Federal Magistrate Judges Association, the

Federal Bar Council, the American Bar Association and the New York State Bar
Association where she has served for many years on the Commercial and Federal
Litigation Section’s Committee on Ethics and Professionalism. She is also a member of
the Nassau County Bar Associations where she has served on the Labor and
Employment Law and Federal Courts Committees.

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ALBANY FACULTY BIOGRAPHIES

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Maria E. Lisi-Murray, Esq.
Levene Gouldin & Thompson, LLP,
Binghamton

Practice Areas
Appellate Practice Civil Rights and Governmental Law
Health Law Insurance Defense
Litigation Medical Malpractice Defense
Oil and Gas Law Personal Injury Litigation

Education
B.A., State University of New York at Binghamton (1992)
J.D., magna cum laude, Syracuse University College of Law (2002)
General Counsel Certificate, Syracuse University College of Law (2002)

Admissions
New York Bar (2003)
U.S. District Court, Northern District of New York (2003)
U.S. District Court, Western District of New York (2003)
U.S. Court of Appeals, Second Circuit (2006)
Pennsylvania Bar (2010)
U.S. Court of Appeals, Third Circuit (2010)
U.S. District Court, Southern District of New York (2009)
U.S. District Court, Middle District of Pennsylvania (2010)

Professional Background and Activities

Binghamton Fund Community Campaign (Past-Chair)
Broome Leadership Institute Graduate
Binghamton Club Board of Governors
Broome County Bar Association (Member)
New York State Bar Association (Member, Task Force on the State of Our Couthouses,
Committee on Mass Disaster Response)
Honorary Recognitions (and Honors)
Justinian Honor Society (Member)
New York State Excelsior Award (1998)
United States Department of Justice Award for Public Service (1998)
Broome County Bar Association Pro Bono Service Award (2009)
Service to Mankind Award (Sertoma) (2009 - 2010)
NYSBA Pro Bono Service Award (2010)
Publications
Author, book review which was published in NIAMBA (a national journal)
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Scott A. Barbour, Esq.
McNamee, Lochner, Titus & Williams, P.C.
Albany

Mr. Barbour concentrates his practice in representing corporate and institutional clients
involved in various types of civil and commercial litigation, including railroad, products
liability, and contract litigation. His practice has an emphasis in matters pending in
federal court, but he has extensive trial and appellate experience in both the federal and
state courts throughout New York. He is also admitted to practice before the United
States District Court for the Northern and Western Districts of New York, the United
States Court of Appeals for the Second Circuit and the United States Supreme Court.
Mr. Barbour is a member of the National Association of Railroad Trial Counsel and the
New York State Bar Committee on Federal Practice. He is a frequent lecturer at
continuing legal education courses sponsored by the New York State Bar Association on
all aspects of civil litigation.
Mr. Barbour has been on the mediation panel for tort and contract actions pending in the
United States District Court for the Northern District of New York since 1998. He is also
a member of the Alternate Dispute Resolution Committee for the Northern District of
New York Federal Court Bar Association. He has also been appointed as a mediator for
"Settlement Days" in Albany County Supreme Court and Rensselaer County
Supreme Court.

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{M0448229.1}
Oliver N. Blaise, III, Esq.
Coughlin & Gerhart, LLP
Binghamton

State University of New York at Albany, B.A. History, cum laude, 1993; M.A. History, 1994;
Syracuse University College of Law, J.D., cum laude, 1997

State of New York, 1998

United States District Court for the Northern (1999) and Western (2002) Districts of New York
United States District Court, District of Columbia, 2006
United States District Court, District of Colorado, 2006
United States Second Circuit Court of Appeals, 2003
United States District of Columbia Court of Appeals, 2007
United States Supreme Court, 2007

Mr. Blaise joined Coughlin & Gerhart, L.L.P. in 1997 and is a Partner in the firm. He is Chair of
the firm's Litigation Practice Group, and his areas of practice include trial and appellate level
work in civil litigation and workers' compensation, representation of local municipalities and
emergency service organizations. His civil litigation experience includes intellectual property,
personal injury, commercial and contract disputes in state and federal courts. His municipal
representation includes school districts, towns, villages and fire districts, as well as volunteer fire
and ambulance companies.

Mr. Blaise is a member of the New York State, Broome County, American, and Tompkins
County Bar Associations. He is a member of the Binghamton Sertoma Club and Broome County
United Way Board of Directors.
 

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SETH EISENBERG, J.D., M.B.A., is a member of the bars of the states of New York,
Colorado and Connecticut. Mr. Eisenberg spent several years in private practice representing
health care institutions and health care providers in litigation, transactional, and regulatory
matters; the news media and corporations in media law issues; schools for the disabled; and
corporate employers in labor, employment, and benefits-related issues. Mr. Eisenberg has
served as the confidential law clerk to the Hon. Thomas J. McAvoy, the Hon. Lawrence E. Kahn,
and the Hon. David N. Hurd, United States District Judges for the Northern District of New
York. Mr. Eisenberg continues to work for Judge McAvoy and has served in that capacity for
over ten years. Mr. Eisenberg also has taught law-related undergraduate courses at Ithaca
College, serves as a Chairman on the New York State Commission on Quality of Care for the
Mentally Disabled Surrogate Decision Making Committee panels, and also serves as an
arbitrator for the New York State Attorney-Client Fee Dispute Resolution Program.

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Yvonne E. Hennessey is a partner at Hiscock & Barclay, LLP where she practices energy and
environmental law. Yvonne represents clients in the oil and gas sector on a broad variety of
issues involving civil litigation, legislation, well permitting and project siting, compulsory
integration, administrative adjudication, civil litigation, lobbying compliance and investigations
by the New York State Attorney General’s office.

She also represents commercial and industrial clients on a wide range of matters involving
permitting, compliance, civil and administrative enforcement, and government relations. She has
assisted corporate and municipal clients, both large and small, in a variety of matters including
those related to the New York State Environmental Quality Review Act (SEQRA), the federal
Clean Air Act (CAA) and related state regulations, the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act
(RCRA), the New York State Coastal Management Program, and other state and federal
environmental statutes and regulatory programs that apply to project permitting and siting.

Yvonne has also represented clients in every aspect of complex litigation in a broad range of
litigation matters, including commercial, regulatory and leasing disputes. Her regulatory
experience includes extensive experience in election, ethics, and lobbying law compliance,
including pertinent statutory and regulatory programs at both the state and federal level.

Yvonne is a member of the New York State Bar Association Environmental Law Section’s
Executive Committee and is the President of the Northern District of New York Federal Court
Bar Association. She was recognized by the New York State Bar Association in September 2010
as one of the “brightest young members” of the Environmental Law Section and, more recently,
she was named to the 2013 and 2014 editions of Best Lawyers in America for Environmental
Litigation and selected by Peer Review for Inclusion in Super Lawyer Directory 2013 for Energy
and Natural Resources.

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Hon. Christian F. Hummel
U.S. Magistrate Judge

Christian F. Hummel is a United States Magistrate Judge for the Northern

District of New York. At the time of his appointment in September, 2012, he
was the Rensselaer County Surrogate. Judge Hummel served as the
Rensselaer County Surrogate from 2002 until September, 2012. Judge
Hummel was a Rensselaer County Family Court Judge from 1993 until
2002. Judge Hummel was a Town Justice in the town of East Greenbush
from 1986 until 1993 .

Prior to his election as Rensselaer County Family Court Judge, he was a

partner in the Albany, New York law firm of Carter & Conboy where his
practice centered on civil litigation and trial work .

Judge Hummel earned his B.A. from the State University of New York at
Plattsburgh and his J.D. from Albany Law School

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ALBERT J. MILLUS, JR. is currently a partner in Hinman, Howard & Kattell, LLP. He
joined the Firm in 1983 after clerking for Hon. James C. Turk, Chief United States
District Judge for the Western District of Virginia. Mr. Millus graduated from the School
of Industrial and Labor Relations at Cornell University, and received his Doctor of Law
degree, magna cum laude, from Cornell Law School in 1982. Mr. Millus is admitted to
practice in New York, the Northern, Western, and Southern Districts of New York, the
United States Courts of Appeal for the Second, Third, Sixth, and Federal Circuits, and
the United States Supreme Court. Mr. Millus’ primary areas of practice are federal and
state commercial and general civil litigation, municipal law, and federal criminal defense.
Mr. Millus is a member of the American Bar Association, the New York State Bar
Association, and the Broome County Bar Association. He is also the Town Attorney for
the Town of Fenton, New York, and the Binghamton Division representative on the
standing Criminal Justice Act Committee for the Northern District of New York.

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Michael J. Murphy, Esq.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.
Albany

PROFILE
Michael J. Murphy is a trial attorney handling complex litigation with an emphasis on
Employment Law and Professional Liability Law. He maintains an active trial practice in State
and Federal courts as well as before the EEOC and New York State Division of Human
Rights. He is regularly retained by leaders in business, government, community organizations,
and the professions to represent their interests in sensitive, high profile litigation and
investigations. Mr. Murphy is currently the Chair of ALFA International, The Global Legal
Network, and Past President of the Northern District of New York Federal Court Bar
Association.
EDUCATION
Albany Law School of Union University, J.D, 1982
State University of New York at Oswego, B.A., 1979
BAR ADMISSIONS
New York State, 1983
U.S. District Court for Northern District of New York
U.S. District Court for Southern District of New York
U.S. District Court for Western District of New York
U.S. Court of Appeals, Second Circuit, 2008
MEMBERSHIPS
ALFA International
Federal Court Bar Association, Northern District of New York
Federation of Defense and Corporate Counsel
New York State Bar Association
Defense Research Institute
Albany County Bar Association
Claims & Litigation Management Alliance
APPOINTMENTS
Chair: ALFA International, Board of Directors
Member: ALFA International Labor & Employment Practice Group
Member: ALFA International Finance Committee
Past-President/Trustee: Federal Court Bar Association, Northern District of New York
Member: Federal Court Bar Association, Northern District of New York
COMMUNITY

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Member: St. Madeleine Sophie Parish Administration/Finance Committee
Board of Directors: SGS Rowing Association

HONORS/AWARDS
“AV” Preeminent Attorney Rating: Martindale-Hubbell
“Super Lawyer”: Super Lawyers® magazine, 2013, 2012, 2011, 2010, 2009, 2008
“Top Labor & Employment Lawyer”: Fortune Magazine, The American Lawyer, Corporate
Counsel, and The National Law Journal, 2013, 2012
“100 Most Important People in the History of Trinity”: Trinity Alliance 100 Years Heritage
Celebration, 2012
RECENT APPEARANCES/PUBLICATIONS
Speaker: “Ethics and Best Practices for Handling and Resolving Litigation – Key Factors to
Determine Whether and When to File Substantive Motions”, ALFA International Continuing
Legal Education seminar, New York City, February 7, 2013.
Speaker: “Dealing with the DHR and EEOC”, Saratoga County Chamber and Saratoga
Economic Development Counsel, July, 2012.
Author: “Proving Impairment in ADA Cases: Do You Need a Note From Your Doctor?”, ALFA
International Labor & Employment newsletter, Summer, 2011.
Moderator: “2010 An Employment Odyssey: Are You Ready For a New Era? Privacy Issues:
Privacy in these Times – Who Owns the Information and How Do You Protect It?”, ALFA
International Labor & Employment Practice Group Seminar, 2010.
Co-Author: “Is Privity Required in Estate Planning Legal Malpractice Actions? Yes, No,
Maybe”, ALFA Professional Liability Newsletter Article, 2010.
Panelist: “A View From the Inside Out: In-House Counsel Discuss the Inns and Outs of Using
and Selecting Outside Counsel”, ALFA International Annual Business Meeting.
Moderator: “Global Labor and Employment Law: A Business View with a Legal Eye, The
Employer’s Right to Information in the U.S. and Abroad”, ALFA International Client Seminar.
Moderator: “Acceptable Risks: The Intersection of Insurance Law, Business & Employment,
Managing Dual Expectations: Who’s the Client Anyway?”, ALFA International Employment &
Corporate Risk Seminar.
Program Chair: “’Employer of the Year’ or ‘The Office’: Which One Are You?”, ALFA
International Labor & Employment Practice Group Seminar.
Moderator: “Employment Practice: Evidence in Employment Cases”, ALFA International
Employment Practices Liability Insurance Seminar.
Co-Presenter: “Witness Exams – Direct and Indirect”, ALFA International Client Seminar.
Panelist: “Die Hard: Winning Before Trial”, ALFA International Labor & Employment Practice
Group Seminar.

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Panelist: “Introductory Lessons on Ethics and Civility”, New York State Bar Association
Seminar, 2012, 2011, 2010.
Co-Presenter: “The 9 Deadly Sins of Hiring and Recruiting: How to Avoid These Common – and
Costly – Mistakes”, BLR webinar.
REPRESENTATIVE CASES
Erie Boulevard Triangle Corp. v. City of Schenectady, 250 F.Supp.2d 22, 2003 WL 1238431,
NDNY, March 11, 2003 (No. 00-CV-1716); Gonzalez v. L’Oreal USA, Inc., 489 F.Supp.2d 181,
2007 WL 1572087, NDNY, May 24, 2007 (No. 1:05-CV-01618); Harris v. Jim’s Proclean
Service, Inc., 34 AD3d 1009, 825 NYS2d 291; Martien v. City of Schenectady, Slip Copy, 2006
WL 1555565, NDNY, June 2, 2006 (No: 1:04-CV-679); Stocklas v. Auto Solutions of Glenville,
Inc., 9 AD3d 622, 780 NYS2d 215.

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James T. Potter, Esq.
Hinman Straub, P.C.
Albany

James T. Potter is Chair of the Firm's Litigation department. His practice includes commercial
litigation, challenges to the limits of government authority and all facets of complex personal
injury litigation. He represents both plaintiffs and defendants at the trial and appellate levels.

Mr. Potter is a member of the Practitioner's Advisory Group to the Commercial Division of the
New York State Unified Court System, the New York Chief Administrative Judge's Working
Group in E-Discovery, and the Committee on Character and Fitness of the Appellate Division,
Third Department. He serves as a voluntary Mediator and Early Neutral Evaluator for the United
States District Court for the Northern District of New York. He also serves as Town Attorney for
the Town of Bethlehem.

Mr. Potter is a past President of the Albany County Bar Association, a past President of the
Albany County Bar Foundation, a fellow of the New York Bar Foundation and served on the
New York State Bar Association House of Delegates, Task Force on the State of Our
Courthouses and Task Force on Eminent Domain.

He is a past member of the Board of Trustees of Albany Law School and is also a past President
of the Albany Law School National Alumni Association.

Mr. Potter was the Editor-in-Chief of the Albany Law Review. After graduating from law
school, he clerked for the Honorable Domenick L. Gabrielli of the New York State Court of
Appeals.

Professional Background

Education: B.A., with Distinction, Cornell University 1977; J.D., cum laude, Albany Law
School 1980

Bar Admissions: New York; United States District Court, Northern, Southern, Eastern and
Western Districts of New York; United States Court of Appeals, Second Circuit

Practice Areas: Litigation

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