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Dear YLS Member:
At the end of 2005, many of you received a communication from the Section announcing plans to redesign our
We reached out to the YLS Executive Committee, the YLS membership, and the NYSBA Section Chairs inviting their participation and seeking their suggestions for content and content authors. The responses and feedback we received were overwhelming, and the input, ideas, and suggestions we received were incorporated into the new design and format of the newsletter.
Published on a monthly basis,
the Section’s electronic newsletter will now feature:
In addition, the newsletter will highlight some of the interesting and noteworthy things young attorneys and law students are doing from around the state. Lastly, and most importantly, the newsletter will serve as a forum for keeping you informed about Section and Association activities, news, events, programs, benefits, and services. Should you have any information relating to any of the above that you feel should be included in Electronically In-Touch, please feel free to send said information to: firstname.lastname@example.org.
On behalf of the Officers and Executive Committee members of the Young Lawyers Section, it is with great pleasure that we present to you the inaugural issue of Electronically In-Touch.
We hope you find Electronically In-Touch to be a value-added benefit of your membership in the Section, and look forward to your feedback as we continue to develop the newsletter.
Did You Know…
The Young Lawyers Section serves young and newly-admitted attorneys, as well as law students, by acting as a bridge to the profession and the New York State Bar Association. In addition to Electronically In-Touch, here are some of the valuable benefits and services the YLS provides, which you may or may not know about:
The YLS Mentor Program - a service designed to allow YLS members an opportunity to consult with seasoned lawyers about specific legal or law office management questions. This is a members-only benefit available to you free of charge. For program information, guidelines, instructions, and access, click here.
Perspective - the print newsletter of the Young Lawyers Section. Published twice per year, Perspective offers substantive legal articles, Section news and events, Association information, and a forum for expressing opinions and/or commentary on issues affecting young lawyers and law students today. This is a members-only benefit distributed to you free of charge. For information about the newsletter and access to back issues, click here.
Supreme Court Admissions Program - a Section-sponsored event for YLS members who would like to obtain admission to practice before the United States Supreme Court. This program includes a special dinner reception, a distinguished guest speaker presentation, the admissions ceremony before the Justices of the Court, and the Section's Spring Executive Committee meeting. This is a biennial program, typically planned for the end of May, beginning of June. The next program is scheduled for 2007.
CLE Programs & Events - CLE
certified programs and events are offered throughout the state during
the course of the year at a discount to YLS members. Major CLE programs and events include: the YLS Fall Meeting CLE
Program; the YLS Annual Meeting CLE Program; and the YLS Bride-the-Gap
Program. The Annual Meeting and
Bridge-the-Gap CLE Programs take place during NYSBA's Annual Meeting
Networking - opportunities to meet and network with other law students, young and newly-admitted lawyers, distinguished jurists and practitioners through YLS sponsored social events and receptions. The YLS plans, organizes, and hosts networking events throughout the state during the year. This is primarily done through the Section's District Representatives and Section Liaisons. The YLS also sponsors a number of networking opportunities in conjunction with meetings and CLE programming.
We encourage you to take full advantage of the many benefits and services the Young Lawyers Section has to offer. Stayed tuned as we work to improve these benefits and services, and look for more opportunities to better serve you!
International Law &
The International Law and Practice Section (ILPS) has upcoming events of interest in which YLS members may participate.
January 25, 2006
ILPS Annual Meeting CLE Program
The ILPS is holding its
Annual Meeting CLE Program from 9:00 a.m. - 12:00 p.m.
The theme of the program is “NAFTA: 10 Years
Later,” and sessions include: "Current
Status of NAFTA: A General Overview of NAFTA More than 10 Years after
its Effective Date of January 1, 1994"; "Chapter 11: Investor-State
Arbitrations under NAFTA"; and "Cross-Border Legal Services in
October 17-22, 2006
The International Law and
Practice Section is actively planning its 2006 meeting in
There are opportunities for young lawyers to get involved in the organization of the event and work with the panelists, not to mention special “Scholarships” to attend the meeting available only to YLS members. Those interested, should please contact Manuel Campos Galvan, the ILPS Liaison, at email@example.com.
Case Law Update
On January 11, 2006, the
New York Court of Appeals heard oral arguments in Balbuena v. IDR Realty,
LLC, 13 A.D.3d 285, 787 N.Y.S.2d 35 (1st Dep't 2004), an extremely important case raising not only constitutional
issues, but issues regarding damages in tort actions as
well. Balbuenaaddresses the novel issue of whether an injured, undocumented
alien can seek and recover future lost wages he or she would have earned
In September 2005, the New York Court of Appeals granted leave to appeal in Bard v. Jahnke, 16 A.D.3d 896, 791 N.Y.S.2d 694 (3d Dep't 2005), which will resolve a conflict between the Appellate Division Departments on whether an "enhanced duty" exists under certain circumstances to hold an owner of a domestic animal liable based on negligence for injuries his or her domestic animal caused the victim (i.e., where a dog's playfulness is known to be a problem to visitors). The victim in Bard was pinned against a stall in a barn in which he was working. Besides holding that the Supreme Court correctly granted the defendants' (the barn owner and the person who subcontracted work to the victim) summary judgment motion based on the lack of evidence demonstrating the bull's vicious propensities, the Third Department refused to adopt the "enhanced duty" rule the First and Second Appellate Departments have adopted in certain, limited circumstances. The Third Department merely considered whether the bull had previously exhibited vicious behavior and rejected the plaintiff's argument that a court should take judicial notice of the ferocity of certain types of domestic animals.
The Appellate Division, Second Department granted leave to appeal to the Court of Appeals in Morejon v. Rais Constr. Co., 18 A.D.3d 632, 795 N.Y.S.2d 654 (2d Dep't 2005),involving the following issue: Can a plaintiff use the doctrine of res ipsa loquitur to win summary judgment on liability? In Morejon, the plaintiff's decedent was injured while delivering materials to a private residence that was undergoing renovation. Building materials fell from the roof of the house and struck the plaintiff's head. The plaintiff commenced a negligence action against the general contractor and its principals. The Second Department reversed the Supreme Court's grant of partial summary judgment to the plaintiff for common-law negligence pursuant to the doctrine of res ipsa loquitur. Following well-settled case law, the Second Department reasoned that the doctrine may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability.
– How Technology Impacts the Practice of Law
Electronic discovery, in our ever expanding digital era, has explosively and unalterably increased the complexity, scope and cost of pretrial discovery. Discovery rules were originally promulgated to deal with paper documents, but information subject to discovery is now primarily captured in a dizzying variety of electronic media and formats. The volume of discoverable, electronically-captured information is huge and growing rapidly because of the way business is done today. As a result, discovery costs have escalated to and, in some cases, beyond inhibiting levels, leaving the courts to struggle with the task of determining equitable allocation of discovery costs between parties, if they permit allocation at all.
E-Mail has become the primary means of workplace communication with an estimated 15 trillion messages generated in 2004. The average business worker receives 40 plus e-mails a day, a figure that is growing at an annual rate of 35%. Because of its informal nature, E-Mail is a holster for many a smoking gun and is, therefore, a frequent discovery target.
Electronic processing, transmission, and storage of information are the overwhelming means of conducting business today and neither government nor business could function effectively without it. It is also a mountain of information to be mined by litigants via the discovery process.
How high is this electronic mountain? Well, a litigant recently asked a court to allocate costs related to electronic discovery when it estimated they would spend nearly $10 million to retrieve just their own archived e-mail messages to comply with a discovery requirement. In another case, D claimed that P’s discovery demands would require its review of 30 million pages of e-mails.
In the federal courts, discovery is carried out pursuant to Federal Rules of Civil Procedure (FRCP), Rules 26 through 37. Under FRCP, discovery is applicable to any issue or document that is relevant to a claim or defense or is likely to lead to relevant material pertaining to such claim or defense. FRCP 26(a)(1)(b) covers data compilations, while FRCP 34(a) requires the production of writings and other data compilations.
The original and basic
rule, especially in
The leading federal case to this point is Zubulake v. UBS Warberg, No. 02 Civ. 1243SAS; S.D.N.Y. 2005 (usually referred to as Zubulake V). In Zubulake, the Court decided that allocation of electronic discovery costs was permissible in some cases, announced a seven factor test to determine when allocation of discovery costs among the parties was appropriate, applied that test to the facts in Zubulake V, and concluded that it was appropriate to allocate certain discovery costs in this case.
The court held that a decision on allocation of discovery costs was to be deferred until the parties provided “an appropriate and detailed analysis indicating whether the material is on the hard drive or back up tape, the actual procedures involved in extracting this material and the costs that will be incurred.” While again noting that the requesting party pays all discovery costs associated with its requests, the court indicated it would not direct discovery until plaintiff expressed a willingness to pay, subject to later apportionment upon submission of the requisite cost analysis, for the discovery demanded. In other words, promise to pay now and if the allocation ruling goes against you, then you do pay.
Etzion v. Etzion, 2005 WL 689468
(N.Y.Sup.), was an acrimonious matrimonial action in which P wife
demanded access to D husband’s computer files and payment for her
attorney and forensic computer specialist. The Court stated that under
“The Current Status of Electronic Discovery in
In addition to
understanding all aspects of electronic discovery for purposes of cost
allocation arguments or satisfying discovery requests, there’s
another strong reason why this subject will be of interest to newer
practitioners. According to the
Likewise, you’ll need to know how to determine what electronic information your client has that could be subjected to a discovery demand so adequate preparation and review can be made. Electronic discovery is clearly no longer the province of geek attorneys or technology-conversant lawyers. It has become a professional obligation for all practitioners. You should supplement your practitioner’s skills accordingly.