ALI-ABA Course of Study The Art and Science of Serving as a Special Master in Federal and State Courts

Sponsored with the Cooperation of the Academy of Court-Appointed Masters

November 1 - 2, 2007 Washington, D.C.

TABLE OF CONTENTS Page PROGRAM xi FACULTY PARTICIPANTS xiii FACULTY BIOGRAPHIES xv STUDY MATERIAL 1. Special Masters Under Rule 53: A Welcome Evolution 1

By David Ferleger 2. The Liability and Immunity of Special Masters: In Search of a Functional 35 Standard By Margaret G. Farrell Table of Contents 37 Study Material 39 3. Federal Rule of Civil Procedure 53 71

Submitted by Paul L. Friedman 4. Amendment of FRCP 53, Effective December 1, 2007 91

Submitted by Paul L. Friedman 5. Judicial Experience with Masters, Monitors, and Other Adjuncts 97

Submitted by Paul L. Friedman Order of Reference to a Special Master, in Blackman v. District of Columbia,

No. 97-1629 (PLF) (D DC, Feb. 12, 1999) 99 Order of Reference to a Monitor, in Blackman v. District of Columbia, No.

97-1629 (PLF) (D DC, Aug. 24, 2006) 105 Order of Reference to a Monitor, in Pigford v. Glickman, No. 97-1978

(PLF) (D DC) 108 Order of Reference to a Monitor, in Pigford v. Glickman, No. 97-1978(PLF)

(D DC, April 4, 2000) 112 Order of Reference to Special Master, in United States v. McDonnell

Douglas Corp., Criminal No. 99-0353 (PLF)(D DC, July 2, 2001) 123 6. Monitor Work in Pigford v. Johanns: Lessons Learned About Claims 129 Processing Judicial Adjunct Work

By Randi Ilyse Roth Submitted by Paul L. Friedman Table of Contents 131

vii Study Material 133 7. Appointing Special Masters and Other Judicial Adjuncts: A Handbook for 147 Judges Submitted by Paul L. Friedman Table of Contents 148 Study Material 151 8. Special Masters in Mega Cases 381

Submitted by Gladys Kessler and Richard A. Levie Order 51, Ninth Case Management Order, in United States v. Philip Morris,

Inc., No. 99-2496 (GK) (D DC) 382 Order 470, Pre-Trial Procedures, in United States v. Philip Morris, Inc., No.

99-2496 (GK) (D DC, January 16, 2004) 435 Report and Recommendation 129 of the Special Master [Pre-Trial Protocols], in United States v. Philip Morris, Inc., No. 99-2496 (GK) (D DC) 446 Memorandum Opinion, in United States v. Philip Morris, Inc., No. 99-2496

(GK) (D DC, December 22, 2000) 476 Order Appointing Special Master, in United States v. Philip Morris, Inc.,

No. 99-2496 (GK) (D DC, December 22, 2000) 484 9. Coordination of State and Federal Cases: A Unique Role and Opportunity 489 for Masters Submitted by Peter H. Woodin Memorandum and Order on Motion to Remand; Proposed Statutory Amendment, In re Zyprexa Products Liability Litigation, No. 04-MD-01596 (JBW)(ED NY, December 7, 2006) 491 Memorandum on Cooperation between Federal and State Judges, In re Zyprexa Products Liability Litigation, No. 04-MD-01596 (JBW) (ED NY, January 22, 2007) 499 Order regarding Cooperation with State Courts, In re Zyprexa Products

Liability Litigation, No. 04-MD-01596 (JBW) (ED NY, January 30, 2006) 503 Order Directing Communication with State Courts, In re Zyprexa Products

Liability Litigation, No. 04-MD-01596 (JBW) (ED NY, April 21, 2006) 507 Memorandum and Order on Common Benefit Fund and Continuing Applicability of Orders of Court and Special Masters, In re Zyprexa

Products Liability Litigation, No. 04-MD-01596 (JBW) (ED NY, December 5, 2006) 538 Letter dated August 31, 2006, to New Castle County Superior Court Judge Joseph R. Slights from Peter H. Woodin, In re Zyprexa Products Liability Litigation 565

viii 10. The Use of Special Masters in Electronic Discovery Disputes 569

By Mark A. Berman and Hall N. Beerman Table of Contents 570 Table of Authorities 571 Study Material 573 11. Techniques and Potential Conflicts in the Handling of Depositions 583

By Victoria E. Brieant 12. Jaffe Handout - The Role of the Monitor in Federal and State Courts 605 Presentation Slides By Joseph Jaffe, Managing Director 13. Rosenthal Handout -- Special Masters for Markman Hearings, ppt 629

By Lawrence Rosenthal 14. Rosenthal Handout -- Special Masters for Markman Hearings, doc 639

By Lawrence Rosenthal

ix 2 Advanced ALI-ABA Course of Study The Art and Science of Serving as a Special Master in Federal and State Courts

Sponsored with the Cooperation of the Academy of Court-Appointed Masters

Thursday-Friday, November 1-2, 2007 Washington, D.C. (Hotel Monaco)

PROGRAM

Thursday, November 1, 2007 8:00 a.m. Registration and Continental Breakfast 8:55 a.m. Introduction and Overview Thursday Morning Panel I: Mr. Schreiber, Chair; Judges Friedman and Scheindlin; Prof. Farrell; Messrs. Ferleger and Herr 9:00 a.m. Update on Developments in the Law Relating to Special Masters, State and Federal — Mr. Ferleger 9:30 a.m. Panel Discussion 9:45 a.m. Liability and Immunity of Court-Appointed Special Masters — Professor Farrell 10:10 a.m. Panel discussion 10:20 a.m. Judicial Experience with Masters, Monitors, and Other Adjuncts — Judges Friedman and Scheindlin 11:00 a.m. Networking Break Thursday Morning Panel II: Mr. Schreiber, Chair; Judges Kessler and Levie; Professors Haydock, McGovern, and Saltzburg; Mr. Ferleger 11:15 a.m. Special Masters in Mega Cases — Judges Kessler and Levie 12:00 noon The Role of the Special Master in Mediating Disputes on Appeal — Professor Saltzburg 12:45 p.m. Panel Discussion 1:00 p.m. Lunch Break Thursday Afternoon Panel: Judge Scheindlin, Chair; Professor McGovern; Messrs. Green, Jaffe, and Marksz 2:30 p.m. The Relationship between Judge and Judicial Adjuncts: An Interactive Discussion with Video Examples and Ethical Concerns — Professor McGovern, Moderator; Messrs. Green and Marks 4:00 p.m. Networking Break 4:15 p.m. The Role of the Monitor in Federal and State Courts — Mr. Jaffe 5:00 p.m. Adjournment for the Day

xi Friday, November 2, 2007 8:30 a.m. Continental Breakfast Morning Panel I: Mr. Herr, Chair; Judge Scheindlin; Professor McGovern; Dr. Nichols; Ms. Brieant; Messrs. Berman, Pokotilow, and Woodin 9:00 a.m. Role of the Special Master in the Intellectual Property Arena — Mr. Pokotilow 9:30 a.m. Panel Discussion 9:45 a.m. Coordination of State and Federal Cases: A Unique Role and Opportunity for Masters — Mr. Woodin 10:15 a.m. Panel Discussion 10:30 a.m. Networking Break Morning Panel II: Professor Haydock, Chair; Professor Farrell; Dr. Nichols; Ms. Brieant; Messrs. Berman, Ferleger, and Woodin 10:45 a.m. The Role of Special Masters in Electronic Discovery — Mr. Berman 11:15 a.m. The Special Master as a Computer Technology Expert — Dr. Nichols 11:45 a.m. Panel Discussion 12:15 p.m. The Role of the Special Master in Depositions and Discovery — Ms. Brieant 12:45 p.m. Panel Discussion 1:00 p.m. Adjournment

Total 60-minutes hours of instruction: 9.75

xii ALI-ABA Course of Study The Art and Science of Serving as a Special Master in Federal and State Courts

Sponsored with the Cooperation of the Academy of Court-Appointed Masters November 1 - 2, 2007 Washington, D.C. PLANNING CHAIRS

Professor Roger S. Haydock Professor Francis E. McGovern William Mitchell College of Law Duke University School of Law 875 Summit Avenue Room 4182 Room 334 Box 90362 Saint Paul, MN 55105 Science Drive and Towerview Road Durham, NC 27708 David F. Herr, Esquire Maslon Edelman Borman & Brand, LLP Sol Schreiber, Esquire 90 South Seventh Street Milberg Weiss Bershad & Schulman LLP 3300 Wells Fargo Center 49th Floor Minneapolis, MN 55402 One Pennsylvania Plaza , NY 10119

FACULTY

Mark A. Berman, Esquire The Honorable Paul L. Friedman Ganfer & Shore, LLP U.S. District Judge 14th Floor E. Barrett Prettyman U.S. Courthouse 360 Lexington Avenue 333 Constitution Avenue, NW New York, NY 10017 Washington, DC 20001

Victoria E. Brieant, Esquire Professor Eric D. Green Stroock & Stroock & Lavan LLP Boston University School of Law Suite 3160 765 Commonwealth Avenue 200 South Biscayne Boulevard Boston, MA 02215 Miami, FL 33131 Joseph Jaffe, Esquire Professor Margaret G. Farrell UHY Advisors FLVS, Inc. Suite 825 19 West 44th Street 5335 Wisconsin Avenue, NW New York, NY 10036 Washington, DC 20016 The Honorable Gladys Kessler David Ferleger, Esquire U.S. District Judge Summit Solutions U.S. Courthouse, Room 6333 Suite 115 333 Constitution Avenue, NW 10 Presidential Boulevard Washington, DC 20001 Bala Cynwyd, PA 19004

xiii The Honorable Richard A. Levie Professor Stephen A. Saltzburg JAMS Wallace and Beverley Woodbury Suite 500 George Washington University Law School 1666 Connecticut Avenue, NW 716 20th Street, NW Washington, DC 20009 Washington, DC 20052

Jonathan B. Marks, Esquire The Honorable Shira A. Scheindlin Marks ADR, LLC U.S. District Judge Suite 410 Daniel Patrick Moynihan U.S. Courthouse 1120 G Street, NW Room 1050 Washington, DC 20005 500 Pearl Street New York, NY 10007 A.J. Nichols, Ph.D. Probitas Corporation Peter H. Woodin, Esquire 27 Preston Road JAMS Woodside, CA 94062 Floor 28 West Building 280 Park Avenue Lawrence Rosenthal, Esquire New York, NY 10017 Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038

xiv FACULTY BIOGRAPHIES

Planning Chair Sol Schreiber, New York, New York Milberg Weiss LLP B.A., City College of New York; LL.B., Yale University Adjunct Professor, Fordham Law School (1972-86) Government and Public Service: United States Magistrate, Southern District of New York (1971-78); Court-Appointed Special Master: In Re Pan Am Air Disaster (Lockerbie) (1995-97), Marcos Human Rights Litigation (1994- ), Agent Orange Litigation (1982- 84); Anglo-American Exchange on Civil Procedure (Judicial Member) (1974); Hearing Officer, New York State Master Energy Plan (1979); Member, Judicial Conference of the United States Standing Committee on Rules of Practice and Procedure (1993-99, Liaison to the Advisory Committee on Civil Rules, 1996-99); Founder, Ovarian Cancer Research Fund Honors: Francis Rawle Award (ALI-ABA 1985); Presidential Award (Legal Aid Society 1984) Memberships: American Law Institute (Members Consultative Group, Complex Litigation Project); American Bar Association (Chair, Federal Asbestos Legislation Committee, Tort and Insurance Practice Section, 1986-87) Publications Include: RESOURCE MATERIALS: CIVIL PRACTICE AND LITIGATION IN FEDERAL AND STATE Courts (ALI-ABA 8th Ed. 1998, 7th Ed. 1996, 6th Ed. 1994); MOORE'S FEDERAL PRACTICE (3d Ed.) (General Editor, 1996- )

Roger S. Haydock, Spearfish, South Dakota Director, National Arbitration FORUM Professor of Law, William Mitchell College of Law Founder and Charter President, Academy of Court Appointed Masters Fellow, Center for International Legal Studies, Vienna, Austria Master, Warren E. Burger Inns of Court Chair, American Bar Association and National Arbitration Forum sponsored Law School Arbitration Competition Member, Street Legal Road Lawyers Member, American Bar Association and ADR Section A.B., St. Mary's College; J.D., DePaul University College of Law Publications: TRIAL ADVOCACY BEFORE JUDGES, JURORS AND ARBITRATORS, 3d Ed., Thomson West, with J. Sonsteng; DISCOVERY PRACTICE, 5th Ed., Aspen with D. Herr; MOTION PRACTICE, 4th Ed. Supplement, with D. Herr and J. Stempel; FUNDAMENTALS OF PRETRIAL LITIGATION, 6th Ed., Thomson West, with D. Herr and Jeff Stempel; LAWYERING: PRACTICE AND PLANNING, 2d Ed., West Group, with P. Knapp; Minnesota METHODS OF PRACTICE: CIVIL ADVOCACY, Thomson West, with P. Knapp;

xv CIVIL RULES FORMS, MINNESOTA PRACTICE, Thomson West, 2 volumes, with D. Herr and S. Peterson; CIVIL RULES ANNOTATED, MINNESOTA PRACTICE, 4 volumes 2nd Ed., 3 volumes, with D. Herr; WITHOUT THE PUNCHES: RESOLVING DISPUTES WITHOUT LITIGATION, Equilaw, with Steve Doyle; Author of numerous law review and magazine articles; Faculty, numerous CLE Programs with ALI-ABA, NITA, and Bar Associations

David F. Herr, Minneapolis, Minnesota Maslon Edelman Borman & Brand, LLP B.A., M.B.A., University of Colorado at Boulder; J.D., William Mitchell College of Law Adjunct Professor, William Mitchell College of Law (1978-2004) Government and Public Service: Minnesota Supreme Court (Reporter, Advisory Committee on Rules of Civil Procedure, 1983- ; Reporter, Advisory Committee on Uniform Local Rules, 1989-92; Reporter, Advisory Committee on General Rules of Practice, 1992- ; Co- Reporter, Advisory Committee on Rules of Appellate Procedure, 1996- ) Honors: Master of the Bench (Warren E. Burger Inn of Court); Distinguished Alumnus Award (William Mitchell College of Law, 1997); Advocate's Award (Minnesota State Bar Association Civil Litigation Section, 1999) Fellow, American Academy of Appellate Lawyers (President) Memberships: American Law Institute; Minnesota State Bar Association (Chair, Section of Civil Litigation, 1986-88; Chair, Task Force on Complete Litigation, 1990-92); Hennepin County Bar Association; Lawyer-Pilots Bar Association; Federal Bar Association Publications Include: “The Class Action Fairness Act of 2005 C Congress Again Wades into Complex Litigation Management Issues” (Co-Author), 227 F.R.D. ___ (2005) (forthcom- ing); “Applying Amended Rule 26 (b)(1) in Litigation: The New Scope of Discovery” (Co-Author), 199 F.R.D. 396 (2001); Eighth Circuit Appellate Practice Manual (Co- Editor) (Minn. CLE, 3d ed. 2005); Minnesota Practice: Courtroom Handbook of Minnesota Evidence (Co-Author) (West, 2005 ed.) Annotated Manual for Complex Litigation (West, 2005); Minnesota Practice: General Rules of Practice Annotated (VOL. 3A) (West, 2001); Motion Practice (Co-Author) (Aspen, 4th Ed., 2004); Chapter 66, “Appeals,” in Successful Partnering Between Inside and Outside Counsel (Co-Author) (2000; Supp. 2004); “Handling Appeals: Beyond Litigation as Usual” (Co-Author) 16 ACCA DOCKET (1998); “Amici-Curiae: Not Just Friends of the Court Anymore” (Co- Author), Prac. Litigator (1998); Multidistrict Litigation (West, 2005); Discovery Practice (Co-Author) (Aspen, 4th ed., 2004)

Francis E. McGovern, Durham, North Carolina Professor of Law, Duke University School of Law B.A., Yale University; J.D., University of Virginia Publications: SUCCESSFUL LITIGATION TECHNIQUES; THE PREPARATION OF A PRODUCT LIABILITY CASE

xvi Faculty

Mark A. Berman, New York, New York Ganfer & Shore, LLP A.B. Columbia University; J.D., Benjamin N. Cardozo School of Law Memberships: American Bar Association (Litigation Section); Association of the Bar of the City of New York; Federal Bar Council Second Circuit Courts Committee; New York State Bar Association (Commercial Division Law Reporter Committee; Secretary, E-Discovery Committee of the Commercial and Federal Litigation Section) Publications: E-Discovery in New York State, NEW YORK LAW JOURNAL, June 22, 2005; Forensic Inspection of Computer Hard Drives Under New York Law, NEW YORK LAW JOURNAL, September 1, 2005; Are Private E-Mails Really Private? NEW YORK LAW JOURNAL, October 7, 2005; The Information Trail, NEW YORK LAW JOURNAL, December 27, 2005; Preservation of Electronic Information by Nonparties under the Private Securities Litigation Reform Act, American Bar Association, SECURITIES LITIGATION JOURNAL, Winter 2006; Can 'Intangible' Electronic 'Property' Be 'Converted' in N.Y.?, NEW YORK LAW JOURNAL, April 26, 2006; The 'Long-Arm Statute,' NEW YORK LAW JOURNAL, August 22, 2006; Developments in New York Electronic Discovery, NEW YORK LAW JOURNAL, October 27, 2006; Spoliation of Electronically Stored Information, NEW YORK LAW JOURNAL, March 20, 2007; Duty to Preserve and Preservations Orders Under N.Y. Law, NEW YORK LAW JOURNAL, June 14, 2007; On ‘Metadata,’ Instant Messaging and Bates Stamping, NEW YORK LAW JOURNAL, August 31, 2007

Victoria E. Brieant, Miami, Florida Stroock & Stroock & Lavan LLP B.A., St. Lawrence University; J.D., State University of New York at Buffalo Government and Public Service: Law Clerk to the Honorable Frederick B. Lacey, United States District Court Judge, District of , Retired, 1983-1984. Memberships: California Bar Association; Florida Bar Association, New York State Bar Association Publications and Speaking: Faculty member, ALI ABA “Civil Practice and Litigation Techniques in Federal and State Courts," Santa Fe, July 2007 (deposition techniques, injunctive relief and ethics); ALI ABA “The Art and Science of Serving as a Special Master in Federal and State Courts,” Washington, D.C., November 2006 (special masters in discovery and recent developments in the case law); ALI ABA “Civil Practice and Litigation Techniques in Federal and State Courts," Charleston, S.C., May 2006 (deposition techniques, injunctive relief and developments in arbitration and mediation)

xvii and San Juan, Puerto Rico (deposition techniques and injunctive relief), January 2005; ALI ABA “Latest Developments in Complex Civil Litigation: An Analysis of the Federal Judicial Center's New Manual for Complex Litigation,” Washington, D.C., November 2003 and San Diego, December, 2003 (copyright, trademark and RICO topics); ALI ABA seminars, including Trial Evidence/Civil Practice, 1991, 1996, 1999, 2001 and 2002, Antitrust & High Technology Markets, 1991-1999; Panelist for Health Tech 2000 Program (on antitrust issues); Co-Chair and Speaker, Annual ALI-ABA conference on “Antitrust and Intellectual Property Legal Developments,” 1991-1999; Speaker, Software Support Conference, 1992; American Conference Institute Programs on “Internet Law and Intellectual Property Licensing Issues,” 1999-2000; Author/Lecturer: Copyright and Trademark Issues in Complex Litigation, ALI ABA “Latest Developments in Complex Civil Litigation: An Analysis of the Federal Judicial Center's New Manual for Complex Litigation,” November 13-15, 2003, Antitrust Injury: A Plaintiff's Perspective, ABA Antitrust Conference, April 2002; Deposition Techniques and Problem Areas, ALI ABA Program, February and August 2002; Soft Science and the Courts After Daubert: Non- Scientific Expert Testimony, ALI ABA Program, April 2001; Antitrust and Regulatory Issues in the Communications Marketplace, ALI ABA Program October 2000 (co-chair and speaker); Structuring International Licensing Agreements and Technology Transfers, (ACI Conferences in February and September 2000); Exposing Yourself on the Worldwide Web: The Legal Implications of Internet Advertising, co-authored with Jeffrey G. Benz (ACI Internet Conference, February 1999); Developing Legal Issues and Effective Practice Techniques in Mediation and Arbitration, co-authored with William N. Hebert (ALI ABA August 1999); Recent Developments In Submarket Definition: Brown Shoe Is Still Good Law?, co-authored with Paul S. Schmidtberger (ALI ABA 1996-98); Information Costs, Lifecycle Costs, Switching Costs, and Lock-In (ALI ABA 1996-98); and Expert Testimony and Facts, lecturer at January 1996 ALI-ABA Conference; Faculty member (1999 and 2000)

Margaret G. Farrell, Washington, D.C. Special Master and Adjunct Professor of Law, American University Washington College of Law B.A., Cornell University; J.D., University of Chicago Professor, Widener University School of Law (1995-96); Professor, Yeshiva University, Benjamin N. Cardozo School of Law (1988-95); Adjunct Professor, University of Virginia School of Law (1987); Adjunct Professor, Yale Law School (1986) Government and Public Service: District of Columbia Legal Services Program; Mental Health Law Project (now the Bazelon Center); Consultant to the Administrative Conference of the United States; White; House Health Care Task Force (1993); President's Advisory Committee on Consumer Protection and Quality in the Health Care Industry; Special Master, Evans v. Williams (D.D.C.) Fellowships: Federal Judicial Fellow (1992); post-doctoral fellow, Department of Health Policy and Management, Johns Hopkins University School of Hygiene and Public Health (1985-86) Memberships: American Bar Association (Section of Health Law); District of Columbia Bar (Health Law Section; Former Member, Ethics Committee)

xviii David Ferleger, Bala Cynwyd, Pennsylvania Founder, Summit Solutions, Alternative Dispute Resolution Special Master, U.S. District Court for the District of Connecticut, United States v. State of Connecticut, 1997-2006 Court-Appointed Monitor, U.S. District Court for the Middle District of Florida, Johnson v. Bradley, 1989-1991 B.A. and J.D., University of Pennsylvania Publications: Special Master Rules: Federal Rule of Civil Procedure 53, The Role of Special Masters in the Judicial System, 2004 Special Masters Conference: Transcript of Proceedings, 31 WILLIAM MITCHELL L. REV. 1193 (2005); Masters in Disability Litigation and Amended Rule 53, 29 MENTAL & PHYSICAL DISABILITY L. REP. 157 (March/April 2005, ABA); Monitoring Costs: Systemic Litigation Regarding Institutions and Community Services, 12 MENTAL AND PHYSICAL DISABILITY LAW REPORTER 492 (November-December 1998, ABA) Teaching: Adjunct Assistant Professor of Law, New York University Law School, 1982-1990; Research Fellow, Legal Service Corporation, Washington, D.C., 1979; Lecturer, University of Pennsylvania Law School (multiple semesters); Supervisor at Agency for Clinical Program, University of Pennsylvania law School, 1972-1973; Faculty, Temple University Student Development Program, Philadelphia, 1974; Supervisor at Agency for Clinical Program, Rutgers University School of Law, 1973- 1974, 1976-1977

Paul L. Friedman, Washington, D.C. U. S. District Judge, District of Columbia (Appointed 1994) B.A., Cornell University; J.D., State University of New York at Buffalo Adjunct Professor, Georgetown University Law Center (1973-75) Partner, White & Case (1976-1994) Other Government and Public Service: Associate Independent Counsel, Iran-Contra Investi- gation (1987-88); Assistant Solicitor General of the United States (1974-76); Assistant U.S. Attorney (D.D.C.) (1970-74); Law Clerk to Hon. Roger Robb (D.C. Cir.) (1969- 70); Law Clerk to Hon. Aubrey E. Robinson, Jr. (D.D.C.) (1968-69); District of Columbia Judicial Nomination Commission (Past Chair); Civil Justice Reform Act Advisory Group (U.S.D.C. for D.C.)(Chair, 1991-94); District of Columbia Public Defender Service (Board of Trustees, 1989-92); Grievance Committee, U.S.D.C. for D.C. (1981-87; Chair, 1983-85); Advisory Committee on Procedures, U.S. Court of Appeals for the D.C. Circuit (1983-88); Judicial Conference of the D.C. Circuit (1976- ) Fellow, American College of Trial Lawyers Memberships: American Law Institute (Council Member); American Bar Association (House of Delegates, 1985-94); District of Columbia Bar (President, 1986-87); American Academy of Appellate Lawyers

xix Publications Include: A Primer on Government Contracting (Co-Author), THE PRACTICAL LAWYER (June/July 1994); Final Report of the Civil Justice Reform Act Advisory Group, U.S. District Court, District of Columbia (Co-Author) (1993); Representing Foreign Clients in Civil Discovery and Grand Jury Proceedings, 25 VA. J. OF INT'L L. 327 (1986)

Eric D. Green, Boston, Massachusetts Professor of Law, Boston University School of Law Principal, Resolutions, LLC A.B, Brown University; J.D., Recipient, 2001 Lifetime Achievement Award, American College of Civil Trial Mediators Professional Membership and Activities: State Bar of Massachusetts State Bar of California (inactive) District of Mass. and Superior Court of the Commonwealth, Massachusetts Asbestos Litigation Guardian Ad Litem, Ahearn Class Action Settlement, Eastern District of Texas Mediator, Suffolk County Superior Court Mediation Program Governors Working Group on Alternative Dispute Resolution (Gov. Dukakis) American Bar Association, Section on Litigation (Conference Coordinator, 1982) ABA/Harvard/NIDR Conference on The Lawyer's Changing Role in Resolving Disputes), Individual Rights, Legal Education, and Criminal Justice Center for Public Resources (CPR) Legal Program on Reducing The Cost of Business Disputes Advisor, CPR Judicial Panel Member, National Panel of Commercial Arbitrators, American Arbitration Association Boston Bar Association, Long Range Planning Committee and Board of Editors, Boston Bar Journal Association of American Law Schools, former Chairman Major Publications: Settling Large Case Litigation: An Alternate Approach (with Marks & Olson), 11 LOYOLA OF LOS ANGELES LAW REVIEW 493 (1978); Avoiding the Legal Logjam – Private Justice, California Style, DISPUTE MANAGEMENT (1981). An Ounce of Prevention: Dispute Resolution by Contract (with Jacobs), DISPUTE MANAGEMENT (1981); The Mini-Trial Approach to Complex Litigation, DISPUTE MANAGEMENT (1981). Proceedings of the Intercorporate Disputes Task Force: Expanded Use of the Mini-Trial, Private Judging, Neutral-Expert Fact Finding, Patent Arbitration, and Industry Self- Regulation, DISPUTE MANAGEMENT (1981); The CPR Legal Program Mini-Trial Handbook, in CORPORATE MANAGEMENT, New York: Matthew Bender & Co., Inc., 1982; PROBLEMS, CASES AND MATERIALS ON EVIDENCE (with Nesson), Little, Brown & Co. 1983, with Teaching Manual and Annual Supplements; A Comprehensive Approach to the Theory and Practice of Dispute Resolution, 34 JOURNAL

xx OF LEGAL EDUCATION 245 (June 1984); DISPUTE RESOLUTION (with Goldberg & Sander), Little Brown & Co., Fall 1985; A Heretical View of the Mediation Privilege, 2 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 1 (1986); Corporate Alternative Dispute Resolution, 1 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 285 (1986); PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE, (Ed. with Tillers), Kluwer Academic Publishers, 1988; RHODE ISLAND RULES OF EVIDENCE WITH ADVISORY COMMITTEE NOTES & CASE LAW DEVELOPMENTS, Salem, N.H.: Butterworth Legal Publishers (1990); PROBLEMS, CASES AND MATERIALS ON EVIDENCE, 2nd Edition (with Nesson), Little, Brown & Co. 1994, with Teaching Manual and Annual Supplements (1997); RHODE ISLAND RULES OF EVIDENCE, (Issue 4) Butterworth Legal Publishers, October 1994; What Will We Do When Adjudication Ends? We’ll Settle in Bunches: Bringing Rule 23 Into the Twenty-first Century, 44 UCLA L. REV. 1773 (1997); Rhode Island Evidence Manual, Lexis Publishing in galley proofs (400 pages); Future Claimant Trusts and “Channeling Injunctions” to Resolve Mass Tort Environmental Liability in Bankruptcy: The Met-Coil Model, (with Patton & Harron), Volume 22, EMORY BANKR. DEV. J. 157 (2005).

Joseph Jaffe, New York, New York Managing Director, UHY Advisors FLVS, Inc. Memberships: Chairman , Merit Selection Panel for Magistrate Judges of the Southern District of New York; New York State Third Department Judicial Nominating Committee; New York State Bar Association (Past Chair of the Criminal Justice Section); New York State Association of Criminal Defense Lawyers (Founding Member and past Secretary); Vice President, International Association of the Independent Private Sector Inspectors General Previous Affiliations: Founder, Decision Strategies, Stamford, CT and New York, NY, 1991- 2003; Partner, Levine, Silverman, Jaffe & Klein, Liberty N.Y., 1982-1991 Public Service: District Attorney, Sullivan County, Monticello, NY, 1978-1981; United States Attorney Office, Southern District of New York, New York, NY, 1971-1977 (Administrative Assistant U.S. Attorney, Deputy Chief of Criminal Division, and Chief of Official Corruption Section); United State Drug Enforcement Administration, Washington, D.C., 1975-1976 (Acting Chief Inspector); United States District Court Southern District of New York, New York, NY, 1969-1971 (Law Clerk to the Honorable Frederick van Pelt Bryan)

Gladys Kessler, Washington, D.C. U.S. District Judge B.A., Cornell University; J.D., Harvard Law School Professional Career: Appellate attorney, National Labor Relations Board, 1962-1964 Legislative assistant, U.S. Sen. Harrison A. Williams, 1964-1966 Legislative assistant, U.S. Rep. Jonathan Bingham, 1966-1968 Special assistant, Director of Office of Staff Relations, Board of

xxi Education, 1968-1969 Private practice, Washington, DC, 1969-1977 Associate judge, Superior Court of the District of Columbia, 1977-1994

Richard A. Levie, Washington, D.C. JAMS Senior Judge, District of Columbia Superior Court, 2000-present B.A., Dickinson College; J.D., George Washington University Law School Memberships: American Bar Association; District of Columbia Bar Association Public Service: Associate Judge, District of Columbia Superior Court, 1985-2000; Presiding Judge, Civil Division and Multi-Door Dispute Resolution Division, District of Columbia Superior Court, 1998-2000; Litigator, U.S. Department of Justice and Commodity Futures Trading Commission, 1971-1972, 1976-1985 Publications: Want to Make Everyone a Winner? Use Mediation for IP Dispute, PHILADELPHIA INTELLECTUAL PROPERTY LAW ASSOCIATION, 2006; New ADR Process Provides Valuable Tool for Corporate and Outside Counsel, THE METROPOLITAN CORPORATE COUNSEL, September 2006 Teaching: Board of Directors and Instructor, Einstein Institute for Science, Health and the Courts, 1997-2002; Adjunct Professor, George Washington University School of Law, 1987-2003; served on the faculties of the National Judicial College, National Institute for Trial Advocacy, and the Attorney General’s Advocacy Institute; has taught at the Trial Advocacy Workshop at Harvard Law School

Jonathan B. Marks, Washington, D.C. Mediator and Arbitrator, Marks ADR, LLC B.A., Harvard College; J.D., Harvard Law School Former Vice Chairman, JAMS/Endispute (1994-199); former Chairman, Endispute, Inc. (1981-1994) Government Service: General Counsel, U.S. International Development Cooperation Agency, 1980-1981; Counsel and Associate Director for Planning and Evaluation, Peace Corps, 1979-1980; Assistant U.S. Attorney, District of Columbia, 1973-1976

A.J. Nichols, Ph.D., Woodside, California President, Probitas Corporation B.S., University of Colorado, Boulder; M.S. and Ph.D. in Electrical Engineering, Stanford University Arbitrator and mediator for the American Arbitration Association, World Intellectual Property Organization, the Northern District of California, the First Appellate District of the California Court of Appeals, and the Peninsula Conflict Resolution Center in San Mateo, California. He obtained his mediation training at Harvard Law School and through the organizations for which he mediates.

xxii Steven B. Pokotilow, New York, New York Stroock & Stroock & Lavan LLP B.S., University of Maryland; J.D., American University Registered to practice before the U.S. Patent and Trademark Office Memberships: American Bar Association; New York Patent, Trademark and Copyright Law Association; U.S. Trademark Association (Legislative Committee, 1991) Publications Include: Whittling Away at Dilution (Co-Author), N.Y.L.J. (Oct. 18, 1999); New Legislation Likely: Are States Now Immune from Infringement Suits? (Co-Author), INTELLECTUAL PROP. STRATEGIST (Sept. 1999); New Risk to Intellectual Property: Can States Infringe with Impunity? (Co-Author), INTELLECTUAL PROP. STRATEGIST (Aug. 1999); Utilitarian Objects: Why the Sum Is Less Than the Parts (Co-Author), INTELLEC- TUAL PROP. STRATEGIST (Apr. 1999); A Better Way to Protect Patents in Europe (Co- Author), INTELLECTUAL PROP. STRATEGIST (Aug. 1998); Defense to Willful Infringement Can Kill Attorney-Client Privilege (Co-Author), INTELLECTUAL PROP. STRATEGIST (June 1998); Cease and Desist Letters: The Legal Pitfalls for Patentees (Co-Author), INTELLECTUAL PROP. STRATEGIST (Dec. 1997)

Stephen A. Saltzburg, Washington, D.C. Wallace and Beverley Woodbury University Professor of Law, George Washington University Law School; Director, University of Virginia Trial Advocacy Institute A.B., Dickinson College; J.D., University of Pennsylvania Professor of Law, University of Virginia (1972-90, Class of 1962 Chairholder, 1987-90) Government and Public Service: Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice (1988-89); Associate Independent Counsel, Iran- Contra Investigation (1987-88); Advisory Committee on the Federal Rules of Criminal Procedure (Member and Reporter, 1984-85); Advisory Committee on Federal Rules of Evidence (Liaison Member, 1993-95); Civil Justice Reform Act Committee (D.D.C.) (1991-99: Reporter, then Chair); Project Director, Tax Refund Fraud Task Force, U.S. Treasury Department (1994-95); U.S. Department of Defense Code Committee (1989-92); U.S. Sentencing Commission (ex officio); Special Master: Hammon v. Barry (D.D.C., 1990-94); Hartman v. Powell and Nathanson (D.D.C., 1991-2001) Memberships: American Law Institute; American Bar Association (House of Delegates) (Section of Criminal Justice: Council, 1999-2001) (Section of Litigation; Co-Chair, Task Force on Civil Trial Standards, 1997-98; Chair, Task Force on the Independent Counsel Statute, 1997-99) (Special Committee on the Prosecution Function, 1991-93; Special Committee on Enemy Combatants; Chair, ABA Justice Kennedy Commission); American Trial Lawyers Association (Reporter, Task Force on Litigation Issues, 1986- 88); National Institute of Justice Less than Lethal Liability Panel (1993-2002) Publications Include: FEDERAL RULES OF EVIDENCE MANUAL (Co-Author) (Lexis, 8th Ed., 2002); AMERICAN CRIMINAL PROCEDURE (Co-Author) (6th Ed., West 2002); BASIC CRIMINAL PROCEDURE (Co-Author) (West, 3d Ed., 2003); MILITARY EVIDENTIARY FOUNDATIONS (Co-Author) (1994); CRIMINAL LAW: CASES AND MATERIALS (Co-Author) (Lexis, 2d Ed., 2000); EVIDENCE IN AMERICA (Co-Author) (Michie 1987); FEDERAL CRIMINAL JURY INSTRUCTIONS (Co-Author) (Michie, 2d Ed. 1991); MILITARY RULES OF

xxiii EVIDENCE MANUAL (Co-Author) (Lexis, 4th Ed., 1997); TRYING CASES TO WIN: ANATOMY OF A TRIAL (Co-Author) (Aspen, 1999); TRYING CASES TO WIN: EVIDENCE: WEAPONS FOR WINNING, CONFRONTATION (Co-Author) (Aspen, 2003)

Shira A. Scheindlin, New York, New York U.S. District Judge, Southern District of New York (1994-present) B.A., University of Michigan; M.A., Columbia University; J.D., Cornell Law School Adjunct Professor, Brooklyn Law School (1983-present) Public Service: Law clerk, Hon. Charles Brieant, Jr., U.S. District Court, Southern District of New York, 1976-1977; Assistant U.S. Attorney, Eastern District of New York, 1977- 1981; General Counsel, New York City Department of Investigation, 1981-1982; U.S. Magistrate, U.S. District Court for the Eastern District of New York, 1982-1986; Civil Justice Reform Act Advisory Group, Southern District of New York, 1992-1994; Chair, Grievance Committee, Southern District of New York, 1996-2000; Judicial Conference of the United States Advisory committee on the Federal Rules of Civil Procedure, 1998-2005 Honors: United States Department of Justice Special Achievement Award, 1980; New York State Bar Association Haig Award, 2001; New York State Bar Association Brennan Award, 2003; New York County Lawyer’s Association Weinfeld Award, 2005 Memberships: American Law Institute; New York County Lawyers’ Association; Association of the Bar of the City of New York; Federal Bar Council; New York State Bar Association; New York State Bar Foundation; Justice Resource Center; Cornell Law School Advisory Council; Good Shepherd Services; Sedona Conference; New York Inn of Court Publications: Legal Services – Past and Present, 59 CORNELL L. REV. 960 (1974); Venue in the Second Circuit (co-author), 43 BROOKLYN L. REV. 841 (1977); Discovering the Discoverable: A Bird’s Eye View of Discovery in a Complex Multidistrict Class Action Litigation, 52 BROOKLYN L. REV. 397 (1986); ‘Portrait of a Lady’: The Woman Lawyer in the 1980s (co-author), 35 N.Y.L. SCH. REV. 391 (1990); Judges, Juries, and Courts: The Judges’ Perspective (panel), 9 J. & POL’Y 169 (2000); Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task? (co-author), 41 B.C. L. REV. 327 (2000); Revisions n Federal Rule 52 Provide New Options for Using Special Masters in Litigation, 76 JOURNAL OF THE N.Y.S. BAR ASSOCIATION 18 (Jan. 2004) (with Jonathan M. Redgrave, Esq.); Mastering Rule 53: The Evolution and Impact of the New federal Rule Governing Special Masters, 51 FEDERAL LAWYER 34 (Feb. 2004) (with Jonathan M. Redgrave, Esq.) With All Due Deference: Judicial Responsibility in a Time of Crisis (co-author), HOFSTRA L. REV. (2004) (with Matthew L. Schwartz, Esq.); Electronic Discovery Sanctions in the Twenty-First Century, 11 MICH. TELECOMM. TECH. L. REV. 71 (2004) (with Kanchana Wangkeo, Esq.); E-Discovery: the Newly Amended Federal Rules of Civil Procedure, MOORE’S FEDERAL PRACTICE, 2006

xxiv Peter H. Woodin, New York, New York Neutral, JAMS B.A., Wesleyan University, 1971; J.D., Columbia Law School, 1988 Lecturer-in-Law, Columbia Law School, 2004, 2005, 2006 Memberships: American Bar Association; New York State Bar Association; Association of the Bar of the City of New York Previous Affiliations: Partner and Mediator, The Feinberg Group, LLP, 1993-2004; Litigation Attorney, Morrison & Foerster, LLP, 1989-1993; Expert Consultant and Reporter to the Presidential Commission on Catastrophic Nuclear Accidents (co-drafter of the Commission’s Final Report to Congress), 1989-1990; Law Clerk to Judge Jack B. Weinstein, United States District Court, Eastern District of New York, 1988-1989 Special Master Appointments: DES Product Liability Litigation (1993-present) In re Agent Orange Product Liability Litigation (1989-93) In re Baycol Product Liability Litigation (2003-present) In re Zyprexa Product Liability Litigation ((2004 – present) Latino Officers Association v. City of New York (2003-2005) September 11th Victim Compensation Fund (2001-2004) United States v. Legal Services of New York (2001-2002)

xxv 2