NYSBA SUMMER 2011 | VOL. 16 | NO. 1 NYLitigator A Journal of the Commercial & Federal Litigation Section of the New York State Bar Association COMMERCIAL AND FEDERAL LITIGATION SECTION ANNUAL MEETING • Presentation of Stanley H. Fuld Award Also Inside • Remarks • The Art of Enforcing a Money Judgment • Presentation: Bridging the E-Discovery Gap • Distinction Between Direct and • Presentation: Reducing Costs for Foreseeable Harm Corporate Clients—Fee Arrangements, • The (Non)-Interpretation of 28 U.S.C. Budgeting, and Billing 1367(d) • Presentation: Reducing Costs for • Spouse’s Credit Card Debt and the Corporate Clients—Case Management Marital Home and Staffi ng Commercial and Federal Litigation Section OFFICERS Delegates to the The NYLitigator House of Delegates: Chair: Editor Vincent J. Syracuse David H. Tennant Tannenbaum Helpern Syracuse & David J. Fioccola Nixon Peabody LLP Hirschtritt LLP Morrison & Foerster LLP 1100 Clinton Square 900 Third Avenue 1290 Avenue of the Americas Rochester, NY 14604-1792 New York, NY 10022 New York, NY 10104 [email protected] [email protected] dfi [email protected] Chair-Elect: Jonathan D. Lupkin Student Editorial Board Tracee E. Davis Flemming Zulack Williamson St. John’s University School of Law Zeichner Ellman & Krause LLP Zauderer LLP Editor-in-Chief 575 Lexington Avenue One Liberty Plaza, 35th Floor New York, NY 10022 New York, NY 10006 Allen J. Rosner [email protected] [email protected] Managing Editor Alyssa Prunty Vice-Chair: David H. Tennant Associate Managing Editor Gregory K. Arenson Nixon Peabody LLP Kaplan Fox & Kilsheimer LLP 1100 Clinton Square Andrew Tealer 850 Third Avenue, Suite 1400 Rochester, NY 14604-1792 Associate Articles Editor New York, NY 10022-7237 [email protected] Amanda Venturi [email protected] Alternate Delegate to the Associate Articles Editor Treasurer: House of Delegates: Uri Horowitz Paul D. Sarkozi Lesley Friedman Rosenthal Senior Staff Tannenbaum Helpern Syracuse & Lincoln Center for the Berel Judowitz Hirschtritt LLP Performing Arts, Inc. Daniel Merker 900 Third Avenue 70 Lincoln Center Plaza, 9th Floor Erika Maurice New York, NY 10022 New York, NY 10023-6583 Julissa Torres [email protected] [email protected] Mark Hochbaum Former Chairs: Staff Members Robert L. Haig Adam Roughley Michael A. Cooper Anna Livshina Shira A. Scheindlin Arely Lemus Harry P. Trueheart, III Arshia Hourizadeh P. Kevin Castel Greg Cheung Mark H. Alcott Jack Newhouse Gerald G. Paul Jacob Awad Mark C. Zauderer Jacqueline Bokser Bernice K. Leber Jeremy Seeman John M. Nonna Jonathan Max McCan Jack C. Auspitz John Ruane Sharon M. Porcellio John Venotsa Jay G. Safer Joseph Lipani Cathi A. Hession Kathryn Garland Lewis M. Smoley Kelly Fissell Lauren J. Wachtler Marshall Kaufman Stephen P. Younger Meaghan Walters Lesley F. Rosenthal Rae Kahle Buse Carrie H. Cohen Richard Campisi Peter Brown Tawsif Chowdhury Vincent J. Syracuse Vanessa Delaney Jonathan D. Lupkin Vanessa Hernandez © Copyright 2011 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 2011 • Vol. 16, No. 1 Page A Message from the Outgoing Chair ........................................................................................................................2 By Jonathan D. Lupkin A Message from the Incoming Chair ........................................................................................................................3 By David H. Tennant Annual Meeting Remarks, Awards and Presentations Presentation of the Stanley H. Fuld Award for Outstanding Contributions to Commercial Law and Litigation at the Commercial and Federal Litigation Section Annual Meeting, January 26, 2011 Presentation remarks by the Honorable Jed S. Rakoff ...............................................................................5 Acceptance remarks by the Honorable Robert A. Katzmann ...................................................................6 Presentation: Bridging the E-Discovery Gap Between Bench and Bar ...........................................................9 Presentation: How Inside and Outside Litigation Counsel Can Add Value and Reduce Costs for Corporate Clients—Fee Arrangements, Budgeting, and Billing ......................................................24 Presentation: How Inside and Outside Litigation Counsel Can Add Value and Reduce Costs for Corporate Clients—Case Management and Staffi ng .........................................................................34 Section Report A Proposal for Enhanced Expert Disclosure in the New York State Commercial Division .......................44 Prepared by the Committee on the Commercial Division Articles Dealing with the Dodgy Debtor: The Art of Enforcing a Money Judgment Under Article 52 of the CPLR ..................................................................................................................................56 By Rebecca Adams Hollis The Supreme Court’s Proximate Cause Analysis Under RICO: A Distinction Between Direct and Foreseeable Harm ..................................................................................................................................61 By Michael C. Rakower Is Your Clock Ticking? The (Non-)Interpretation of 28 U.S.C. 1367(d) by New York Courts ....................67 By David E. Miller Think a Spouse’s Individual Credit Card Debt Cannot Result in the Foreclosure of the Marital Home? Think Again .................................................................................................................70 By Andrew J. Scholz NYSBA NYLitigator | Summer 2011 | Vol. 16 | No. 1 1 A Message from the Outgoing Chair My mind is just spinning. Leading the Commercial and Federal Litigation I cannot believe that my year Section has been the most rewarding undertaking of at the helm of the Commercial my professional career to date. I have enjoyed the rich and Federal Litigation Section camaraderie of like-minded colleagues and have derived has drawn to a close. And untold satisfaction from witnessing a large number of what a year it has been! important projects come to fruition. After giving much thought I owe an enormous debt of gratitude to several to this, my last “Chair’s individuals, without whom this year would not have Message,” I have decided been the success that it was. Thank you to our Section’s against recapping all that we Executive Committee, and in particular, to my Offi cers, have accomplished over the David Tennant, Tracee Davis, Paul Sarkozi and Erica last year. To be sure, from our Fabrikant. You all worked tirelessly for this Section and Mentoring Initiative to our provided me with immeasurable support and good soon-to-be released compendium of “Best Practices for counsel. Thank you to Lesley Friedman Rosenthal Electronic Discovery in the Federal and State Courts,” we and Matt Maron, two visionary leaders who were have been extremely busy. But to use this fi nal column instrumental in the launch of our Section’s Mentoring like an Egyptian obelisk, recording our successes for Initiative. Thank you to all of our Section’s former chairs posterity, would be antithetical to what our Section stands for blazing the trail and leading the way for our Section for. to evolve into what it is today. Thank you to my partners at Flemming Zulack Williamson Zauderer LLP for If I had to defi ne the Commercial and Federal supporting my efforts this past year and for permitting Litigation Section in a single word, that word would be me to hold this second “full time” job. Finally, a special “service.” As expressed by that great poet, Bob Dylan: thank you to Michelle Lupkin, my beloved wife of twenty You may be an ambassador to England or one years, and to Shira, Arielle, Leora and Ilana Lupkin, France my four remarkable daughters; without your unwavering You may like to gamble, you might like love, support, understanding and patience, I could not to dance have served effectively. You may be the heavyweight champion The time has now come to pass the baton to Incoming of the world Chair, David Tennant, and his slate of offi cers: Chair-Elect You may be a socialite with a long string Tracee Davis, Vice Chair Gregory Arenson and Treasurer of pearls Paul Sarkozi. David and his all-star team know what it But you’re gonna have to serve means “to serve.” I am confi dent that they will lead our somebody, yes indeed Section with distinction, integrity and class in the year to You’re gonna have to serve somebody.1 come. Team David—the Section is now in your capable hands. What makes our Section so special is the willingness of its members, be they partners at premier law fi rms, in-house Jonathan D. Lupkin counsel at world renowned institutions, solo practitioners or members of the state and federal judiciary, to give freely of their time and formidable talent to better the legal profession. It would be easy enough for our Section Endnote members to rest on their proverbial laurels. Instead, 1. Excerpt from lyrics to “Gotta Serve Somebody,” by Bob Dylan. though, our members recognize the importance of and satisfaction derived from having “to serve.” 2 NYSBA NYLitigator | Summer 2011 | Vol. 16 | No. 1 A Message from the Incoming Chair Taking over the helm in the program’s second year to further ensure that the of the Section may be a Section attracts and serves the professional interests of all particularly appropriate image commercial litigation attorneys. given our Spring Meeting in I also wish to see our Section address