NYSBA SUMMER 2012 | VOL. 17 | NO. 1 NYLitigator A Journal of the Commercial & Federal Litigation Section of the New York State Bar Association Data Breaches AAlsolso IInsidenside • History of the United States District Court for the Southern District of New York • Expert Selection • Report on Proposed Amendments to Federal Rule of Civil Procedure 45 Commercial and Federal Litigation Section OFFICERS Delegate to the The NYLitigator House of Delegates: Chair: Jonathan D. Lupkin Editor Tracee E. Davis Flemming Zulack David J. Fioccola Zeichner Ellman Williamson Zauderer LLP Morrison & Foerster LLP & Krause LLP One Liberty Plaza, 35th Floor 1290 Avenue of the Americas 575 Lexington Avenue New York, NY 10006 New York, NY 10104 New York, NY 10022 [email protected] dfi [email protected] [email protected] Delegate to the Student Editorial Board Chair-Elect: House of Delegates: St. John’s University School of Law Gregory K. Arenson David H. Tennant Kaplan Fox Nixon Peabody LLP Editor-in-Chief Staff Members & Kilsheimer LLP 1100 Clinton Square Kelly Fissell Krystyna Baumgarter 850 Third Avenue Jonah Brassard Rochester, NY 14604-1792 Managing Editor Suite 1400 John Coco dtennant@nixonpeabody. Meaghan Walters New York, NY 10022-7237 com Joseph Colarusso [email protected] Associate Managing Editor Joshua Copperman Alternate Delegate to the Vanessa Hernandez Caner Demirayak Vice-Chair: Natalie Elisha House of Delegates: Executive Blog Editor Paul D. Sarkozi Catherine Filus Lesley Friedman Rosenthal Marshall Kaufman Tannenbaum Helpern Lincoln Center for the Benjamin Frenkel Syracuse & Hirschtritt LLP Performing Arts, Inc. Executive Articles Editor Derek Garman 900 Third Avenue 70 Lincoln Center Plaza Joseph Lipani Rebecca Goldberg New York, NY 10022 Thomas Greene 9th Floor Associate Editors [email protected] Andrew Herrera New York, NY 10023-6583 Richard Campisi Thomas Keane LRosenthal@ Kathryn Garland Secretary: Michael Kupferberg lincolncenter.org Arely Lemus Rebecca Adams Hollis Michael Lopez Anna Livshina Todtman, Nachamie, Spizz, Gabriel Luaces Former Chairs: John Ventosa & Johns, P.C. Robert L. Haig John Marck 425 Park Avenue Michael A. Cooper Senior Staff Members Heather McMahon New York, NY 10022 Shira A. Scheindlin Jacob Awad Javier Merino [email protected] Harry P. Trueheart, III Jacqueline Bokser Christopher Mukon P. Kevin Castel Rae Kahle Buse Javier Ortiz Treasurer: Mark H. Alcott Gregg Cheung Ernesto Papaleo James M. Wicks Gerald G. Paul Tawsif Chowdhury Joseph Reigadas Farrell Fritz PC Mark C. Zauderer Vanessa Delaney Jennifer Russell 1320 RXR Plaza Bernice K. Leber Arshia Hourizadeh Carlo Sciara Uniondale, NY 11556-1320 John M. Nonna Jonathan McCann Tara-Yvonne Sheppard [email protected] Jack C. Auspitz Jack Newhouse Jacob Shweky Sharon M. Porcellio Adam Roughley Bradley Smith Delegate to the Jay G. Safer John Ruane Ethan Smith House of Delegates: Cathi A. Baglin Jeremy Seeman Shmuel Stein Vincent J. Syracuse Lewis M. Smoley Richard Teemsma Tannenbaum Helpern Lauren J. Wachtler Michael Wheeler Syracuse & Hirschtritt LLP Stephen P. Younger Matthew Yogg 900 Third Avenue Lesley F. Rosenthal Stephanie Zambrano New York, NY 10022 Carrie H. Cohen Jared Zuckerman [email protected] Peter Brown Vincent J. Syracuse Faculty Advisors Jonathan D. Lupkin Rosa Castello David H. Tennant Edward Cavanagh © Copyright 2012 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 Summer 2012 • Vol. 17, No. 1 Page A Message from the Outgoing Chair ........................................................................................................................3 By David H. Tennant A Message from the Incoming Chair ........................................................................................................................4 By Tracee E. Davis Articles Data Breaches ...........................................................................................................................................................6 By Mary Noe Retelling the History of the United States District Court for the Southern District of New York ..........................................................................................................9 By John D. Winter and Richard Maidman The Nuts and Bolts of Expert Selection ..............................................................................................................18 By Carol E. Heckman and Dan J. Altieri Book Review: Commercial Litigation in New York Courts, Third Edition .........................................................20 Reviewed by Cathi Baglin Report Report on Proposed Amendments to Federal Rule of Civil Procedure 45 ....................................................21 Prepared by the Commercial and Federal Litigation Section Committee on Federal Procedure NYSBA NYLitigator | Summer 2012 | Vol. 17 | No. 1 1 2 NYSBA NYLitigator | Summer 2012 | Vol. 17 | No. 1 A Message from the Outgoing Chair What a great honor and tion; (2) expanded mediation; (3) automatic non-binding privilege to have had a turn at arbitration in the Commercial Division for cases under a the helm of the Section, work- specifi ed amount; (4) use of an a neutral search facilita- ing closely with Tracee Davis tor to help with e-discovery; and (5) amendments to the and the other talented and col- CPLR re e-discovery. The complete report is available on legial group of offi cers, com- the Section’s website at www.nysba.org/ComFed. The mittee chairs, and members— “Davis Administration” is exploring how to build upon often in committees, working and advance the FCS agenda and the Chief Judge’s Task groups, and task forces. (And Force on Commercial Litigation in the 21st Century. The I thought Presbyterians held FCS Working Group’s efforts dovetailed with the Chief lots of meetings!) JetBlue and Judge’s Task Force and have given voice to client-centered AirTrain became a regular reforms. I am deeply indebted to the FCS Working Group, commute from Rochester to especially the cadre of exceptional in-house counsel who New York City but the Section made noteworthy strides drove the initiative under the leadership of Chair Mitchell in shortening distances by technology. Videoconferencing F. Borger, Vice President and Associate General Counsel connected an Executive Committee meeting—hosted in for Macy’s Inc. I look forward to seeing how these ideas Buffalo—with Rochester, Syracuse, Albany, Binghamton may be implemented. and NYC, and also united three “thruway communities” for an upstate “tri-city” CLE program (linking Syracuse, A Pipeline Initiative for the Ages Rochester and Buffalo courthouses). We got a glimpse of the future as the video and audio connections worked Diversity and inclusion are woven into the fabric of fl awlessly and brought Section members together. Such our Section, with the groundbreaking Smooth Moves technological advances will allow the Section to project its program leading the bar. This year saw another ground- presence and programming to all four corners of the state, breaking event as the Section established a model pipe- making this preeminent Section of the bar relevant and line program at UB law school: a moot court program attractive to commercial litigators everywhere. aimed at undergraduate students of color. The inaugural competition at UB Law School will provide a template An outgoing chair’s message naturally is backward- for undergraduate minority moot court programs at looking. But as I look back on the past twelve months I other law schools in New York. This pipeline initiative am struck in equal measure by what has been added to is multi-cultural in design with all minority law student the foundation of the Section for the future. In addition to associations participating. We expect competitions to be making a renewed commitment to increasing our mem- organized at several other law schools this next year. The bership upstate, the Section is poised to continue two goal is to eventually establish this feeder program at each other signifi cant initiatives established over the course of law school in New York, working with the State Bar and the past year: (1) the work of the faster-cheaper-smarter its Committee on Diversity and Inclusion. I am deeply working group and (2) the minority moot court program indebted to my partner, Sheldon K. Smith, for organiz- to attract undergraduate students of color to law school. ing the UB Law program, and Justice Ariel Belen of the Second Department for promoting the pipeline program More Faster-Cheaper-Smarter downstate. The mantra of “faster-cheaper-smarter” has been At the end of the day, the Section’s strength is its invoked by judges at CLEs and by former State Bar people. I am extremely grateful to have had the chance to President Steve Younger in the House of Delegates, and serve the terrifi cally dedicated members of this Section. is captured in the fi nal report of the FCS Working Group, adopted by the Section on June 12. The report identifi es Thank you. fi ve specifi c initiatives to reduce the time-line and cost of traditional litigation: (1) aggressive early neutral evalua- David H. Tennant NYSBA NYLitigator | Summer 2012 | Vol. 17 | No. 1 3 A Message from the Incoming Chair I am honored and privi- tion members, all of whom play a crucial role in the pro- leged to have the rare oppor- cess, we can distill those practices that enhance the ability tunity to lead what I believe is of litigators to successfully handle the Southern and East- the most