Litigation Update
Upcoming Programs & CLE
APRIL 2013

This update, which includes recent City Bar reports and upcoming programs in the area of litigation, will be issued periodically to City Bar members who practice or have an interest in litigation.


eDiscovery 101: Playing by the (Pending New) Rules
Monday, April 22, 8:30 am-10:00 am

The Legal Audit Process: Practical Considerations for In-house and Outside Counsel Breakfast Panel Discussion
Monday, April 29, 8:15 am-10:00 am

Recent En Banc Federal Circuit Cases: Clearer Law or Confusion?
Tuesday, April 30, 6:30 pm-8:30 pm

What is Defensible when the Technology Keeps Changing? Current Topics in eDiscovery
Thursday, May 2, 8:30 am-10:00 am

Missed a Program? You Can Still Benefit! CLE Programs' CDs, DVDs and other course
materials can be found on the website.

Settlement of Cases in Federal Court
Rule 68 of the Federal Rules of Civil Procedure was designed to encourage settlement of civil cases in federal court, yet it provides little incentive to do so. In an effort to promote discussion within the bar of how best to promote the settlement of civil cases in the federal courts, the Committee on Federal Courts issued a report which provides an overview of Rule 68, reviews the issues related to the settlement of cases in federal court, and analyzes how best to encourage settlement, including the pros and cons of amending the Rule to include a fee-shifting provision.

In addition, the Committee on Federal Courts wrote to the Administrative Office of the U.S. Courts recommending that Rule 68 be amended to permit plaintiffs as well as defendants to make offers of judgment under the Rule. The Committee expressed its concern that Rule 68 has not succeeded in its ostensible purpose of encouraging early case settlement, at least in commercial cases, and is rarely used in that category of cases. In addition to making the Rule reciprocal, the Committee recommended further study of possible methods to enhance the costs recoverable by plaintiffs who successfully invoke Rule 68 by, for example, imposing a multiplier on recoverable costs or some other mechanism, to make a symmetrical rule more fair to plaintiffs and defendants, and to motivate plaintiffs to use the Rule.

Non-Party Deposition Subpoenas
In a letter to the Administrative Office of the U.S. Courts, the Committee on Federal Courts proposed that the Federal Rules of Civil Procedure be amended to provide non-parties who are served with a Rule 30(b)(6) deposition subpoena greater protections against undue burdens. Specifically, the amendments call for the adoption of a minimum notice period for such non-party depositions, as well as an automatic stay of such depositions upon the filing of a motion for a protective order. Such an amendment, the letter notes, would address the problem that non-party recipients of deposition subpoenas cannot postpone or limit the scope of such a deposition without moving for and obtaining a protective order before the date of the scheduled deposition, which can be required by subpoena on very short notice.

Court Rule on Electronic Discovery
The Council on Judicial Administration, Committee on State Courts of Superior Jurisdiction and E-Discovery Working Group collaborated on comments to the Office of Court Administration on proposed rules to require counsel to confer on e-discovery issues prior to the preliminary conference whenever a case is reasonably likely to involve electronic discovery. The comments are generally supportive of the proposal, noting the importance of counsel addressing issues relating to discovery of electronically stored information (ESI) at the outset of the litigation. The comments include several recommended amendments to the Rules that would (i) include reference to the burden as well as the cost of e-discovery; (ii) include as a consideration whether ESI is reasonably accessible; (iii) include a provision that parties should confer as appropriate should ESI issues arise after the conference; and (iv) clarify some of the phrasing in the Rules. The comments also acknowledge that OCA has undertaken efforts to train judges and court personnel regarding ESI issues and stress the importance of extensive training with periodic updates, to keep pace with changes in this rapidly developing area.

Redaction of Personal Identifying Information
In comments submitted to the Office of Court Administration, the Council on Judicial Administration expressed general support for the adoption of 22 N.Y.C. R.R. §202.5(e)(“Proposed Rule”), which would prevent the unnecessary disclosure of personal identifying information in papers filed in civil matters. The report set forth a number of suggestions on how to further improve the Proposed Rule, including: 1) urging that the Proposed Rule not serve to override or undercut the efficacy of the Chief Clerk Memorandum 172 (“CCM-172”), issued by the Chief Clerk of the New York City Civil Court, which requires the clerk to redact social security numbers from any document filed with the New York City Civil Court; 2) amending the definition of confidential personal information by deleting “a mother’s maiden name”; 3) that any sealing of documents containing confidential personal information pursuant to the Proposed Rule be in accordance with the current requirement of 22 NYCRR §216.1 that any sealing must be no broader than necessary to protect a threatened interest; and 4) special efforts to protect unrepresented and unsophisticated litigants from the risk of identity theft.

Committee Involvement--It's Never too Late
Committees are how the City Bar’s work gets done. Working on a committee can give you great experience while opening up a number of career doors, some you may not even anticipate.

A full list of the City Bar committees along with a brief description of each and an application form can be found on the City Bar’s website. As a number of City Bar committees have more applicants than available slots, please consider applying to more than one committee.