NYSBA SUMMER/FALL 2014 | VOL. 20 | NO. 2 Commercial and Federal Litigation Section Newsletter A publication of the Commercial and Federal Litigation Section of the New York State Bar Association Message from the Message from the Outgoing Chair Incoming Chair I am proud to have been the I am truly honored to begin Section’s 25th Chair, but I am es- my service as the Chair of the pecially proud of the efforts of so Commercial and Federal Litiga- many Section members who have tion Section, and I invite each of made the past year a success. We you to work with us to fulfi ll our have met my goals to continue mission of being the premier bar to produce excellent reports and organization dedicated to business CLE programs, to communicate litigation in New York. We have a through 21st-century media as very ambitious agenda for the well as print, and to celebrate the next year—one that will raise Section’s 25 years. Gregory K. Arenson our profi le and involvement in Paul Sarkozi the state and federal courts, one (continued on page 3) (continued on page 4) Inside The Spring Meeting ..............................................................................5 Section Presents the Eighth Annual “Smooth Moves” CLE Program for Attorneys of Color and Bestows the Honorable Spring Meeting: Is a Complex Commercial Appeal Different George Bundy Smith Pioneer Award on Esteemed Attorney from All Others? The View from the Appellate Bench ...............7 Kay Crawford Murray ..................................................................21 (Jaclyn H. Grodin) Acceptance Remarks by Kay Crawford Murray Upon Receipt Spring Meeting: PRISM, Snowden and the NSA— of the Hon. George Bundy Smith Pioneer Award, Smooth National Security Litigation in the Digital Age ...........................9 Moves 2014 .....................................................................................22 (Peter J. Pizzi and Joseph DeMarco) Update: Committee on Bankruptcy Litigation ...............................23 Spring Meeting: Ethical Issues in the Investigation of Commercial Lawsuits ................................................................... 11 Chief Judge Lippman’s Vision Coming to Life ...............................24 (Tony Harwood) (Rebecca C. Smithwick) Spring Meeting: Alternative DISCOVERY Resolution ..................13 Commercial Litigation Academy ......................................................27 (Steven Bennett) (Kevin J. Smith) Spring Meeting: Expert Witnesses ....................................................14 CPLR Amendments: 2014 Legislative Session ................................29 Update: Committee on Social Media ...............................................16 2014 Amendments to the Uniform Rules for Supreme and County Courts, Rules Governing Appeals, and Update: Committee on the Commercial Division ..........................18 Certain Other Rules of Interest to Civil Litigators ....................29 Update: Committee on Arbitration and ADR .................................19 Notes of the Section’s Executive Committee Meetings .................30 Changing Landscape of International Arbitration in New York ..20 (Clara Flebus) WHEN YOU LOVE WHAT YOUIN DO, A ITJAM? SHOWS. 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Koeltl, who is a member On October 23, 2013, the Section celebrated its 25th of the Advisory Committee and one of the prime movers anniversary at the Kaplan penthouse in the Rose building behind the proposed amendments, praised the Section’s at Lincoln Center thanks to former Chair Lesley Rosen- contribution: “The comments refl ected the extensive work thal with aid from New York State Bar Association Section of your committee and the even-handed consideration of Liaison Beth Gould. Nearly 200 persons attended, about a the proposals. The comments were in the highest tradi- quarter of whom were judges. A highlight of the evening tion of the Association.” was the videotaped words of wisdom from past Chairs, In addition to commenting on proposed changes in which may still be viewed on the Section’s website. The the Federal Rules of Civil Procedure, the Section has com- evening was capped by remarks from two friends of the mented on changes proposed this year by the Commercial Section—former New York Court of Appeals Chief Judge Division Advisory Council in practices of the Commercial Judith S. Kaye and Second Circuit Court of Appeals Chief Division of the state courts. At the behest of the Commer- Judge Robert A. Katzmann. cial Division Committee under the leadership of Mitch Katz and Julie North, the Section has: (1) approved provi- Reports sions for accelerated adjudication actions to be adopted in pre-dispute contracts; (2) endorsed a limit of 25 interroga- The bread and butter of the Section’s activities are the tories restricted at the outset to witness identities, logisti- reports we produce on topics of interest and the educa- cal information about documents, and damages, while tional programs we present in a variety of venues. It has relegating any contention interrogatories to the end of been a productive year. discovery; (3) supported a pilot program in the New York In March, we adopted Social Media Ethics Guidelines County Commercial Division to send one in fi ve cases to to help answer ethical challenges presented by social mediation within six months of assignment; (4) favored media. They were prepared by the Section’s Social Media a pilot program to be tried in New York County to refer Committee under the guidance of Co-Chairs Mark Ber- complex discovery issues to a pool of very experienced man and Ignatius Grande. The Guidelines, which have and highly qualifi ed attorneys with knowledge of e-dis- received a favorable press, cover attorney advertising, covery issues acting as special masters; and (5) supported furnishing advice through social media, review and use of a proposal to encourage categorical privilege logs. Also, evidence from social media, communicating with clients the Section adopted a report prepared by the Electronic through social media, and researching jurors and report- Discovery Committee endorsing a proposal for guidelines ing misconduct. for electronic discovery from non-parties with substantial modifi cations to be consistent with governing case law In June 2013, thanks to the Social Media Committee and any other applicable rules, including the CPLR. All with input from the Employment and Labor Committee these comments were transmitted to the New York State co-chaired by Robert Holtzman and Gerry Hathaway, the Offi ce of Court Administration for consideration in the Section issued a memorandum opposing legislation in rule-making process. Already, the limitation on the num- the New York State legislature prohibiting employers or ber of interrogatories has been adopted. educational institutions from requesting from an em- ployee, applicant, or student any user name, password, The Section has also commented on proposed amend- or other means for accessing a personal account or service ments to the CPLR to conform to certain federal practices. through electronic communications devices. Although the The Section’s CPLR Committee, headed by Jim Bergin legislation did not pass in 2013, it was revived in the 2014 and Tom Bivona, took the lead in addressing these issues. legislative session. The Association’s CPLR Committee proposed a modifi ca- tion of CPLR 4547 regarding the admissibility in subse- In September 2013, the Section approved a report quent proceedings of statements or conduct in settlement on proposed amendments to the Federal Rules of Civil negotiations so that it conformed to Federal Rule of Evi- Procedure concerning case management, discovery, and dence 408. However, the federal rule includes a provision spoliation, which report was submitted to the Advisory for the benefi t of the United States Department of Justice, Committee on Civil Rules of the Standing Committee on with which the Section disagreed. We therefore submit- Rules of Practice and Procedure of the Judicial Conference ted to the Association’s Executive Committee a partial of the United States. This report was a product of the Sec- opposition to permitting the admission into evidence in tion’s Federal Procedure Committee under the direction a subsequent criminal proceeding of a party’s conduct or of Jim Parver and Michael Rakower and the Electronic statements made in negotiation of a prior civil dispute Discovery Committee under the direction of Connie between the defendant and a government agency. Boland and Adam Cohen. Michael also testifi ed before the Advisory Committee on November 7. Southern District of (continued on page 31) NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2014 | Vol. 20 | No. 2 3 Message from the Incoming Chair (Continued from page 1) that will create new leadership and participation opportu- This upcoming year marks important anniversa- nities for our members, and one that