Embed Size (px)
Citation preview
1
Mario D. Cometti, Esq.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
How to Prepare for Complex Litigation Discovery
©2015
2
About Your Presenter
©2015
Tully Rinckey PLLC Partner Mr. Cometti concentrates his practice on Family and Matrimonial
Law and Civil Litigation. Prior to joining Tully Rinckey, Mr. Cometti was a partner at a civil
litigation firm with offices in Fairfield County, Conn. and New York City.
Mr. Cometti has extensive experience representing parties – including high net worth individuals – in complex divorce proceedings.
He also has represented health care systems and provider groups as a consultant in the ever-changing field of health care law and, when necessary, in litigation against insurers and payors for the in various types cases such as contract disputes and with respect to the recovery of fees.
Mr. Cometti received a juris doctorate from Tulane Law School a bachelor’s degree from Fordham University.
Examples of casesExamples of cases What defines a “complex” litigation case? There are
classic examples, e.g., mass torts, antitrust, civil rights, employment discrimination, characterized by multiple parties and multiple claims based on new and complicated theories.
However, what it really means is any case in which there are legal issues involving multiple areas of law, numerous parties and possibly extensive discovery.
3
©2015
4
Meeting with client-– Probably the most important thing you can do is to meet with your client
and get a handle as soon as possible as to the issues that may be involved in the case.
Checklist:Checklist:– Who are the cast of characters? On both sides.
Special issue - Are their potential witnesses who are no longer employees of the employer?
EEOC v. Sterling Jewelers Inc., 2012 U.S. Dist. LEXIS 67220 (W.D.N.Y. 2012)
Chambers v. Capital Cities/ABC, 159 F.R.D. 441 (S.D.N.Y. 1995)
©2015
Assessing the complexity and Assessing the complexity and preparing for the long haulpreparing for the long haul
5
– What is the chain of command in dealing and updating your client and in obtaining authority?
– Discovery What will you need to prove your case and how
can you simplify? What are they going to ask for?
– Creating a committee to deal with the various departments of your client and how each separate unit may retain documents
©2015
Assessing the complexity and Assessing the complexity and preparing for the long haulpreparing for the long haul
6
Confidentiality order. – Judd v. Take-Two Interactive Software, Inc.,
2008 U.S. Dist. LEXIS 26920 (S.D.N.Y. 2008)– Generally, parties cannot prevent opposing parties from
informally interviewing potential witness and must disclose known information about potential witnesses upon demand during discovery.
– Attachment 1: Classic Protective Order Assessing the need for outside experts.
– To validate your client’s actions, standards in the industry or to create reports and/or gather information
– To attack and fend off anticipated arguments raised by other side.
©2015
Assessing the complexity and Assessing the complexity and preparing for the long haulpreparing for the long haul
Litigation Holds– A litigation hold is a written directive advising custodians of certain
documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation.
– Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)– Once a party reasonably anticipates litigation, it must suspend its
routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents.
– Need to ascertain if your client has a document retention policy and whether it has been followed. Has your client complied with existing law and standards in the industry
– Attachment 2: Example Document Retention Policy
7
©2015
Assessing the complexity and Assessing the complexity and preparing for the long haulpreparing for the long haul
Preparing for the discovery Preparing for the discovery onslaughtonslaught
• Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)• Court found that defendant failed in is duty to retain
documents it should have known is relevant in a potential action, is reasonably calculated to lead to the discovery of admissible evidence, or is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.
• Gilbert v. Ligamarri, 420 N.Y.S.2d 484• Appellant sought respondent to create and disclose a hand
writing sample. No provisions of article 31 extend so far as to empower the court to order a party to take affirmative action to create and bring into existence an otherwise nonexistent writing, document or other thing or object on the theory that following its court-ordered manufacture it may prove to constitute evidence material and necessary to the prosecution of his adversary's case
8
©2015
9
Case Management and Case Management and document retention toolsdocument retention tools http://www.capterra.com/legal-case-management-
software/
©2015
Who is the face of the Who is the face of the companycompany
• Federal 30(b)(6) Witnesses• Federal Rule of Civil Procedure 30(b)(6) allows a
corporation or other entity to designate a witness to testify on the organization’s behalf and requires only that the designated witness be able to testify about information “known or reasonably available to the organization.”
• Under FRCP 26(c). The organization may inadvertently waive its objections to the Rule 30(b)(6) deposition notice if it fails to make a timely motion for a protective order or fails to meet and confer with its adversary before making the motion.
• Warning- avoid the super witness pitfall10
©2015
11
©2015
New York State Law– Under NY law a party may designate who will appear
for the corporation at its deposition. C.P.L.R. §§ 3106(d), 3107; NYU Hospitals Ctr. v Concert Health Plan, 2013 N.Y. Misc. LEXIS 5927, 18 (N.Y. Sup. Ct., 2013); Prudential Ins. Co. v Ward Products Corp., 394 NYS2d 480 (N.Y. App. Div. 3d Dep’t, 1977)
– A party can still depose people who have sufficient knowledge of facts. See White v. Tutor Time, 71 A.D.3d 761, (N.Y. App. Div. 2d Dep't 2012); see Colicchio v. City of New York, 581 N.Y.S.2d 36 (N.Y. App. Div. 1st, 1992); NYU Hospitals Ctr. v Concert Health Plan, 2013 N.Y. Misc. LEXIS 5927, 18 (N.Y. Sup. Ct., 2013)
Who is the face of the companyWho is the face of the company
12
Cost/benefit analysis– Is the litigation hurting your client’s
business a. Reputation b. Time wasted c. Litigation cost
Is there an Exit Strategy Proper valuation ADR.
©2015
When is enough is enough is enough: Exit StrategyWhen is enough is enough is enough: Exit Strategy
13
Mario D. Cometti, Esq.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York
©2015
Questions?
