Table of Contents Summer 2005 Vol

Table of Contents Summer 2005 Vol. 10, No. 1 Page Message from the Chair By Lauren J. Wachtler ............................................................................................................................3 Independent Private Sector Inspectors General: Privately Funded Overseers of the Public Integrity By Stanley N. Lupkin and Edgar J. Lewandowski ...........................................................................6 Committee Report—Should Deposition Witnesses Be Allowed to Confer With Their Counsel During a Deposition?...........................................................................................................20 Differences in Discovery in State and Federal Courts—Electronic Discovery and Other Miscellany ..................................................................................................................................27 Electronic Evidence and its Admissibility Under Exceptions to the Hearsay Rule in State and Federal Courts.......................................................................................................32 Committee Report—What Should Be the Precedential Effect of “Unpublished” Decisions? ..........38 New York Attorney General Eliot Spitzer’s Acceptance of Section’s Stanley Fuld Award...............55 Committee Report—Providing Offers of Judgment With “Teeth”: A Proposal for the Amendment of Federal Rule of Civil Procedure 68.............................................................................59 Section Committees and Chairs..................................................................................................................66 At-Large Members of the Executive Committee......................................................................................67 NYSBA NYLitigator | Summer 2005 | Vol. 10 | No. 1 1 Message from the Chair By Lauren J. Wachtler I am pleased to report that ing program was well attended and received excellent our Section membership has reviews from those who participated. Our luncheon this now increased to more than year broke all prior records, having been attended by 2,320 and has been touted as 400 attorneys and more than 60 State and Federal one of the fastest growing Sec- judges. Attorney General Eliot Spitzer, who received tions of the Bar. Indeed, there is our Section’s Stanley H. Fuld award, asked Jay Himes, hardly a week that goes by who Chairs our Antitrust Committee, to present the where our Section does not con- award to him. Jay’s introductory remarks were not only tribute in some significant way elegantly delivered, but the substance of his remarks to the practice of commercial was matched only by that of Attorney General Spitzer’s law in New York; whether in acceptance speech and its inspiring content. Following the form of a CLE program, a report, a commentary on the meeting, the luncheon was covered on the front a variety of issues affecting our Section and the legal page of the Law Journal and our Section was prominent- community at large, or an event which has led to posi- ly featured in the article, as well as in several other Bar tive press coverage of our Section and its members. The publications. week of January 24, 2005, during which the Annual A round of applause is due to Lesley Rosenthal, Meeting of the New York State Bar Association and all who Co-chaired the Presidential Summit with me on of its Sections took place, was just such an example. behalf of State Bar President Ken Standard. Lesley’s Tracee Davis, our Section Secretary, and I participat- remarkable efforts resulted in what attendees have ed in the Diversity Reception that week, attended by, described to me as being the most engaging and sub- among others, our Bar President Ken Standard, past Bar stantive program among the many which they have President Tom Levin, and the Honorable Carmen ever attended. Beauchamp Ciparick of the State Court of Appeals, along with 150 members of the State Bar. Tracee, my partner Paul Montclare, and I were able to meet with “[T]here is hardly a week that goes by those who attended the reception and speak about our Section and the many benefits it has to offer. I was where our Section does not contribute encouraged with the genuine interest sparked by the in some significant way to the practice discussions I had with some of the attendees, and the of commercial law in New York . .” number of attorneys who were eager to join our Section and work on one or more of our committees. As a result of one such discussion, one of our Sec- Not only have our Section’s contributions been rec- tion members who practices bankruptcy litigation had ognized by the State Bar, but several weeks ago, the the excellent suggestion of adding a Bankruptcy Litiga- Section received recognition again in the New York Law tion Committee to our 29 committees, both for those of Journal regarding our contributions to the Commercial us who practice in Bankruptcy Court, and to also Division Rules and Guidelines, on which Section mem- address some of the issues that those of us who don’t bers have been working closely with Commercial Divi- routinely practice in the Bankruptcy Courts encounter sion Judges, and in particular, their principal author, the in our practice. I, for one, have had clients who have Honorable Leonard B. Austin. The article recognized been involved in bankruptcy proceedings and it has the significant contributions of our Section members, often been necessary to reach out to other attorneys for many of whom are members of the Commercial Divi- advice, counsel, or even referrals. We welcome Douglas sion Advisory Committee, and have provided input Tabachnik to our Executive Committee and as the Chair into the Rules and Guidelines and the important of our new Bankruptcy Litigation Committee. I encour- process of their implementation. age those of our members who are interested in this Our work with the Commercial Division has con- area of the law to join this new Committee. tinued in other areas, and we will again be presenting a There is no question that the highlight of that week seminar for the Commercial Division judges statewide was our Section’s Annual Meeting and luncheon, which in conjunction with the Judicial Institute at Pace Univer- took place on Wednesday, January 26, 2005. The morn- sity School of Law. Our program this time, at the NYSBA NYLitigator | Summer 2005 | Vol. 10 | No. 1 3 requests of the Commercial Division judges, will focus that it was based on the increase in our numbers during on trade secrets, the Class Action Fairness Act, issues the past year that prompted the request of the State Bar relating to electronic evidence, and jury instructions for our Section to participate in this worthwhile involving contract cases. The seminar will take place on endeavor. May 11, 2005 at the Pace Law Institute. Again, I appreci- We have also been asked to assist the Honorable ate the overwhelming response by our Section members Jacqueline W. Silbermann, Administrative Judge of to help with this program and share their expertise with New York County, in filling two new positions which the Commercial Division judges who have shown their have been created for attorneys who wish to clerk for a appreciation of these seminars by asking us to hold Commercial Division judge. A link to the flyer advertis- them both in New York and Westchester for the past ing this opportunity can be seen on the front page our three years. This continues to be a wonderful opportu- website (http://www.nysba.org/comfed). I am pleased nity to work directly with the judges of the Commercial to say that it was our Section which pointed out to the Division and involve as many of our Section members Administration the difficulty many attorneys were hav- as possible in assisting the judiciary. ing in obtaining expeditious results on motions and During the past several months, we have also pro- other submissions based on the increased number of vided the State Bar Executive Committee with our com- matters which have come into the Commercial Division ments on the Jury Commission Report, the expanded in recent years. The Administration, in response to our definition of pro bono, and subsequent adoption of the letters and comments made in meetings, is addressing expanded definition, which incorporated almost all of these problems and, it is hoped that the addition of our Pro Bono Committee report’s comments, and the these clerkship positions, will afford some relief to the State Bar Executive Committee’s proposal to repeal New York County Commercial Division judges in man- New York law office requirements set forth in Judiciary aging their caseloads, and shortening the time between Law § 470. To our Section’s credit, our members have motion submission and adjudication. never been timid in expressing their views, even if they This past March, our Executive Committee was are contrary to the majority or popular position. They privileged to have as our guest speaker the Honorable have always provided “food for thought” and the Exec- Robert Smith, the newest addition to the State Court of utive Committee of the State Bar Association has consis- Appeals. We also welcomed to our Executive Commit- tently commended our Section on its fine work and the tee at that meeting Preeta Bansal, the immediate past scholarship and excellence of our reports. Most recently, Solicitor General of the State of New York, and now a we presented our Class Action Committee’s report, member of the law firm of Skadden Arps Slate Meagher which the committee is

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