NYSBA FALL 2010 | VOL. 15 | NO. 2 NYLitigator A Journal of the Commercial & Federal Litigation Section of the New York State Bar Association Commercial and Federal Litigation Section Spring Meeting • Remarks • Awards • Appearing Before the Commercial Division • Ethical and Practical Considerations in E-Discovery • Discussion Following a Screening of “The Response” Also Inside • En Banc Review for Intermediate Appellate Courts • Criminal Prosecutorial Discretion in Insider Trading Cases • Donnelly Act Diversions from Federal Antitrust Law Commercial and Federal Litigation Section OFFICERS Delegates to the The NYLitigator House of Delegates: Chair: Editor Vincent J. Syracuse Jonathan D. Lupkin Tannenbaum Helpern Syracuse & David J. Fioccola Flemming Zulack Williamson Hirschtritt LLP Morrison & Foerster LLP Zauderer LLP 900 Third Avenue 1290 Avenue of the Americas One Liberty Plaza, 35th Floor New York, NY 10022 New York, NY 10104 New York, NY 10006 [email protected] dfi [email protected] [email protected] Jonathan D. Lupkin Student Editorial Board Chair-Elect: Flemming Zulack Williamson St. John’s University School of Law David H. Tennant Zauderer LLP Editor-in-Chief Nixon Peabody LLP One Liberty Plaza, 35th Floor 1100 Clinton Square New York, NY 10006 Allen J. Rosner Rochester, NY 14604-1792 [email protected] Managing Editor [email protected] Alyssa Prunty Joseph V. DeMarco Vice-Chair: Associate Managing Editor DeVore & DeMarco, LLP Tracee E. Davis 99 Park Avenue, 16th Floor Andrew Tealer Zeichner Ellman & Krause LLP New York, NY 10016 Associate Articles Editor 575 Lexington Avenue [email protected] Amanda Venturi New York, NY 10022 [email protected] Alternate Delegate to the Associate Articles Editor House of Delegates: Uri Horowitz Secretary: David Rosenberg Senior Staff Erica Fabrikant Marcus Rosenberg & Diamond LLP Berel Judowitz Flemming Zulack Williamson 488 Madison Avenue, 17th Floor Daniel Merker Zauderer LLP New York, NY 10022-5702 Erika Maurice One Liberty Plaza, 35th Floor [email protected] Julissa Torres New York, NY 10006-1404 Mark Hochbaum [email protected] Former Chairs: Robert L. Haig Staff Members Treasurer: Michael A. Cooper Adam Roughley Paul D. Sarkozi Shira A. Scheindlin Anna Livshina Tannenbaum Helpern Syracuse & Harry P. Trueheart, III Arely Lemus Hirschtritt LLP P. Kevin Castel Arshia Hourizadeh 900 Third Avenue Mark H. Alcott Greg Cheung New York, NY 10022 Gerald G. Paul Jack Newhouse [email protected] Mark C. Zauderer Jacob Awad Bernice K. Leber Jacqueline Bokser John M. Nonna Jeremy Seeman Jack C. Auspitz Jonathan Max McCan Sharon M. Porcellio John Ruane Jay G. Safer John Venotsa Cathi A. Hession Joseph Lipani Lewis M. Smoley Kathryn Garland Lauren J. Wachtler Kelly Fissell Stephen P. Younger Marshall Kaufman Lesley F. Rosenthal Meaghan Walters Carrie H. Cohen Rae Kahle Buse Peter Brown Richard Campisi Vincent J. Syracuse Tawsif Chowdhury Vanessa Delaney Vanessa Hernandez © Copyright 2010 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 2010 • Vol. 15, No. 2 Page A Message from the Chair ...........................................................................................................................................2 By Jonathan D. Lupkin Mentoring Volunteer Form ..................................................................................................................................4 Remarks, Awards and Presentations from the Commercial and Federal Litigation Section Spring Meeting, May 22-23, 2010 Remarks from the Gala Dinner .............................................................................................................................5 Presentation of the Robert L. Haig Award for Distinguished Public Service to the Honorable Reena Raggi Presentation Remarks by the Honorable Edward R. Korman ................................................................11 Acceptance Remarks by the Honorable Reena Raggi ..............................................................................13 Presentation: Introduction to Appearing Before the Commercial Division: Preparation, Practices, and Potential Pitfalls .............................................................................................16 Presentation: Fundamental Ethical and Practical Considerations in E-Discovery: Views From the Bench ..................................................................................................................................30 Presentation: Discussion Following a Screening of “The Response” ............................................................45 Scenes from the Commercial and Federal Litigation Section Spring Meeting .............................................52 Reports En Banc Review for Intermediate Appellate Courts in New York State .......................................................54 Prepared by the Appellate Practice Committee Criminal Prosecutorial Discretion in Insider Trading Cases: Let’s Look at the Numbers ..........................56 Prepared by the Securities Subcommittee of the White Collar Criminal Litigation Committee Experiments in the Lab: Donnelly Act Diversions from Federal Antitrust Law ..........................................61 Prepared by the Antitrust Committee NYSBA NYLitigator | Fall 2010 | Vol. 15 | No. 2 1 A Message from the Chair On June 1, 2010, I became and facing layoffs and dwindling job prospects, to look the 22nd Chair of the Com- for assignments that will “boost their billables,” instead mercial and Federal Litiga- of developing their skills. We owe it both to the profes- tion Section, one of the most sion and to society at large to ensure that young attorneys well-respected sections of the evolve not into mere time-billing automatons, but into New York State Bar Asso- qualifi ed, creative and ethical lawyers. ciation. I am honored to have Quality mentoring— the transmission of knowledge, been given this extraordinary skills and perspective from one generation to the next— opportunity, but having been is one critical component to any meaningful solution. entrusted with the helm, I now Given the importance of mentoring to the future of our shoulder a huge responsibil- profession, New York State Bar President (and former ity: a responsibility not only Section Chair) Steve Younger has urged NYSBA members to promote the future of our to “serve as mentors to the next generation of lawyers, to Section, but to honor its distinguished legacy. represent our profession well and, most important, to be stewards of our profession.” “We owe it both to the profession and The Commercial and Federal Litigation Section has to society at large to ensure that young heeded President Younger’s call to action. Our Section is attorneys evolve not into mere time- rolling out a mentoring program geared towards the next billing automatons, but into qualified, generation of commercial litigators. I have asked former Section Chair Lesley Friedman Rosenthal and Matthew creative and ethical lawyers.” Maron, an attorney who, himself, is part of the next gen- eration, to spearhead this effort. Although still a work in We live in diffi cult times. Our nation’s economy is the progress, the Commercial and Federal Litigation Mentor- worst it has been since the Great Depression, and indus- ing Program has begun to take shape. It has but one over- tries across the spectrum are struggling. The struggle arching goal: to provide newer attorneys with a potent has forced us all to engage in a bit of introspection and and meaningful avenue for professional development. reevaluation. “What went wrong?” and “How do we fi x it?” are the questions weighing on everyone’s minds. Our program has several components. First, we have instituted, on a pilot basis, a one-on-one mentor- The legal profession is no different from any other ing initiative to match experienced commercial litigators sector of the economy insofar as it has been impacted with those who are newer to the practice. (Notably, but profoundly by the economy. Law fi rms are folding and not surprisingly, several Section stalwarts, including a talented young lawyers are jobless. Like everyone else, former President of the New York State Bar Association, members of our legal profession are looking for a solu- former Chairs of our Section and other prominent prac- tion. Regrettably, there is no simple solution; there is no titioners, have already volunteered for service.) In addi- one silver bullet capable of solving the myriad problems. tion to whatever private arrangements are made between I, for one, do not claim to have any comprehensive cure- the individual mentors and mentees, we will be hosting all. periodic get-togethers for all participants in the program. These gatherings will permit mentees not only to meet In times like this, I think back to my middle school other mentors, but to network with their professional basketball coach, Randy Dulney. When, as was often the contemporaries. If this pilot program proves successful case, our team was trailing an opponent, Coach Dulney (and I have every reason to believe it will), we intend to admonished us to get back to the fundamentals. “Fix the broaden it and create a virtual clearinghouse for mentor- fundamentals,” he said, “and everything else falls into ing requests from younger Section members. place.” The second component of our program involves a Like my middle school basketball team, our profes- concept we have seen implemented in other jurisdictions: sion