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Nysba Fall 2020 | Vol NYSBA FALL 2020 | VOL. 25 | NO. 3 NYLitigator A Journal of the Commercial & Federal Litigation Section of the New York State Bar Association Inside n Protecting Privilege in Cyberspace, the Age of COVID-19 and Beyond n The Parameters of Electronic Communication Discovery by Foreign Litigants n The Federal Procedure Committee Report: The Fifth Amendment Privilege ...and more Commercial and Federal Litigation Section OFFICERS Delegates to the The NYLitigator House of Delegates: Chair Editor Gregory K. Arenson Jonathan B. Fellows Orna Artal Kaplan Fox & Kilsheimer LLP Bond, Schoeneck Ramos & Artal LLC 850 3rd Ave, Ste 1400 & King, PLLC 535 5th Ave, Fl 4 New York, NY 10022 1 Lincoln Ctr New York, NY 10017 [email protected] Syracuse, NY 13202 [email protected] [email protected] Robert N. Holtzman Deputy Editor Kramer Levin Naftalis Chair-Elect & Frankel LLP Joam Alisme, Esq. Daniel K. Wiig 1177 Avenue Of The Americas Alisme Law LLC NYC Housing Authority New York, NY 10036 195 Montague St, Fl 14 90 Church St [email protected] Brooklyn, NY 11201 New York, NY 10007 [email protected] [email protected] Paul D. Sarkozi Tannenbaum Helpern Vice-Chair Syracuse & Hirschtritt LLP Ignatius A. Grande 900 3rd Ave Former Chairs Berkeley Research Group LLC New York, NY 10022 810 7th Ave, Ste 4100 [email protected] Laurel Kretzing Lauren J. Wachtler New York, NY 10019 Robert L. Haig Stephen P. Younger [email protected] Alternate Delegate to the Michael A. Cooper Lesley F. Rosenthal House of Delegates Shira A. Scheindlin Carrie H. Cohen Secretary Laurel R. Kretzing Harry P. Trueheart, III Peter Brown Jessica C. Moller Office of the Nassau P. Kevin Castel Vincent J. Syracuse Bond, Schoeneck & King, County Attorney Mark H. Alcott Jonathan D. Lupkin PLLC 1 West St Gerald G. Paul David H. Tennant 1010 Franklin Ave, Rm 200 Mineola, NY 11501 Mark C. Zauderer Tracee E. Davis Garden City, NY 11530 lkretzing@nassaucountyny. Bernice K. Leber Gregory K. Arenson [email protected] gov John M. Nonna Paul D. Sarkozi Jack C. Auspitz James M. Wicks Treasurer Sharon M. Porcellio Mark A. Berman Anne B. Sekel Jay G. Safer Mitchell J. Katz Foley & Lardner LLP Cathi A. Baglin Robert N. Holtzman 90 Park Ave Lewis M. Smoley New York, NY 10016 [email protected] Accommodations for Persons with Disabilities: NYSBA welcomes participation by individuals with disabili- ties. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact the Bar Center at (518) 463-3200. © Copyright 2020 by the New York State Bar As so ci a tion ISSN 1085-4193 (print) ISSN 1933-8589 (online) Cite as NYLitigator Table of Contents Fall 2020 • Vol. 25, No. 3 Page Message from the Chair ...............................................................................................................................5 By Jonathan B. Fellows Judicial Profile: Hon. Ruth Bader Ginsburg .............................................................................................6 By Phil Schatz Protecting Privilege in Cyberspace, the Age of COVID-19 and Beyond ........................................... 11 By Melanie L. Cyganowski, Erik B. Weinick and Aisha Khan Ethical Duties Related to Remote Working .............................................................................................16 By Carrie H. Cohen and Chan-young Yang Why Has the National Mood Turned So Nasty and Is There a Remedy? The Economic Theory of Interdependence May Provide an Answer and Judicial Restraint May Be the Key ............19 By Hon. Charles E. Ramos (Ret.) The Parameters of Electronic Communication Discovery by Foreign Litigants ...............................22 By Carrie H. Cohen and Chan-young Yang (Un)specific Personal Jurisdiction ............................................................................................................26 By Ryan Hersh A Contractor Must Request a License Before Commencing Excavation Work .................................30 By Christopher E. Vatter The Federal Procedure Committee Report: The Fifth Amendment Privilege ..................................33 The views expressed in the articles in this publication are not endorsed by the Commercial and Federal Litigation Section, unless so indicated. NEW YORK STATE BAR ASSOCIATION If you have written an article you would like considered for publication, or have an idea for one, please contact: Editor: Orna Artal Ramos & Artal LLC 535 Fifth Avenue, 4th Fl New York, NY 10017 [email protected] Deputy Editor: Joam Alisme, Esq. Alisme Law LLC 195 Montague St, 14 Fl Brooklyn, NY 11201 Phone: (917) 768-5363 [email protected] Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information. REQUEST FOR ARTICLES New York State Bar Association New York NYSBA Membership 2021 Renewal Is Now Open NYSBA membership grants you access to exclusive benefits and to be part of monumental change. Whether it’s adapting to the new virtual environment, participating in health law discussions, or speaking out on racial injustice, we are always looking to increase involvement via leadership and task force opportunities. Here’s a list of existing benefits and partners…with additional ones added throughout the year! • Complimentary CLE programs included with select Membership • 25%+ discount on all additional CLE programs offered • 25%+ discount on all NYSBA published books & forms • Complimentary copies of the NYSBA Journal, State Bar News, CasePrepPlus and NY Law Digest NYBSA Partners ABA Retirement Funds JDL Group Renew Online USI Affinity Insurance Ruby Receptionists ABACUSLAW UPS NYSBA.ORG/RENEW2021 Clio Digital Age Marketing Group or by phone 800.582.2452 LawPay Fastcase Don’t forget! Discounted entertainment, travel and activities. New York Yankees Radio City Music Hall NYC Zoos and Aquariums Brooklyn Nets Sightseeing Pass AVIS/Hertz Rental Cars Barclays Center *Select discounts and promotions will vary by partner Message from the Chair By Jonathan B. Fellows It has gotten warmer, and now cooler, and yet the The New York State Bar Association recently an- COVID-19 pandemic continues to dominate our personal nounced that the Annual Meeting will be fully remote. and professional lives. As I wrote to you last summer, we We, of course, cannot recreate our Gala Luncheon on have been fortunate in Central New York to have been Zoom. Nor can we have our reception at the Second allowed to reopen our law offices and return in one small Circuit library. We will conduct remote CLE programs part to normalcy. I am keenly aware, however, that most on January 20, 2020, and will have a Zoom reception on of my colleagues in the Commercial and Federal Litiga- the evening before. The new Chief Judge of the Second tion Section are still working in their alternative locations. Circuit, Debra Livingston, has agreed to offer some in- formal remarks for the reception. Those of you who have The Section has tried to be of assistance to all of our attended our reception know that her predecessor as Chief NY members during these trying times. This issue of the Judge, Robert Katzmann, offered generous remarks the Litigator includes several pieces addressing issues raised past several years. by the COVID-19 pandemic. Our Section Committees and members continue to present an impressive number of I am writing this the day after the death of Justice remote programs. Please check our page on the NYSBA Ginsburg. I have taken time over the past few hours to website regularly and take advantage of these programs. consider the arc of her career, and what it has taught us. I have missed travelling to New York City for our Execu- I was blessed to have clerked for another trailblazing tive Committee meetings, but the first two of my time jurist, the late Phyllis Kravitch, who sat on the Eleventh as Chair, while conducted remotely, were nevertheless Circuit after being the first woman elected to the bench in enjoyable for the remarks of Judge Sullivan in July and Georgia. Like Justice Ginsburg, Judge Kravitch was a top Justice Scarpulla in September. Judge Sullivan’s remarks graduate of a top law school who could not find a job in a on his concern of the development of young lawyers dur- law firm, but ended up reaching the pinnacle of her pro- ing these times of remote working were a reminder that fession. I was fortunate to learn much about overcoming all of us more senior lawyers need to keep our younger challenges from Judge Kravitch. As I have stated before, colleagues in mind during these times. It was wonderful the best work this Section has done during the time I have in our September meeting to share in the joy of Justice been a member is the work of our Women’s Initiative Task Scarpulla, a loyal friend of the Section, in her elevation to Force. Its most recent report documented that progress the First Department. toward equality for women in the courtrooms of our state remains slow, and highlighted the continuing work we As the state courts cautiously reopen, members of the must all do to remedy this situation. Today, however, I am Section continue to weigh in on the future. Personally, imagining what my law firm would be like without my over the past several weeks I have argued a state Su- many female colleagues, what our courts would be like preme Court motion by Skype for Business, participated without the many women judges I have had the honor to in a federal court settlement conference by Skype, argued appear before, and what this Section would be like with- an Article 78 petition in state Supreme Court in person out the many dynamic women who have led and partici- (masked), argued in the Appellate Division in person pated in its success. May we honor Justice Ginsburg in our (masked and seemingly miles away from the five Jus- future work. tices), and argued in the Second Circuit by Zoom.
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