Home Electronically In Touch Newsletter 2006 Issues January 2006

Dear YLS Member:

At the end of 2005, many of you received a communication from the Section announcing plans to redesign our

• that is relevant to your day-to-day professional practice;
• that will assist you in networking and developing career opportunities;
• that can offer you insight into balancing your personal and professional lives;
• that will keep you connected to the Section and the State Bar; and
• that can be incorporated without a significant commitment of time into your already busy schedules. 

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:

• advice, guidance, and tips useful to you both professionally and personally;
• include "nuts and bolts" information about substantive legal issues;
• highlight cases and decisions of interest;
• provide updates from Section Liaisons and District/Alternate Representatives;
• offer employment resources and opportunities; and
• list a calendar of events. 

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: intouch@nysbar.com. 

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 in New York City at the end of January.  For information about the 2006 YLS Annual Meeting CLE Program, including registration information, click here.  For information about the 2006 YLS two-day Bridge-the-Gap CLE Program, click here.

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!

Liaison Report

International Law & Practice Section
By Manuel Campos Galvin, Section Liaison

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 North America."  Click here for the program brochure.

October 17-22, 2006

Involvement Opportunities – ILPS Fall Meeting

The International Law and Practice Section is actively planning its 2006 meeting in Shanghai, China, where the topic will be “China: Engine of Change in the Twenty-First Century.”  The Section is organizing a broad range of financial, commercial, trade and other international law-related topics for programs where the importance of China’s relations with regions outside of North America and the perspectives of lawyers from areas such as Latin and South America, Europe, and other parts of Asia on relevant legal issues will be emphasized.

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 mcampos@lexcorp.com.mx.

Case Law Update
By Matthew S. Lerner¹

Recent Grants for Leave to Appeal to the New York Court of Appeals

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 the United States but for his or her injuries sustained within the scope of his employment in this country.  The First Department decided Sanango v. 200 E. 16th St. Hous. Corp., 15 A.D.3d 36, 788 N.Y.S.2d 314 (1st Dep't 2004)-- an appeal addressing the same issue -- on the same day as Balbuena.  The First Department in Sanango held that an undocumented alien could not recover future lost wages he or she would have earned in this country but for his or her injuries.  The First Department in Balbuena relied on its reasoning in Sanango in holding that the injured plaintiff was not entitled to the future lost wages he would have earned in the United States but for his injury.

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.

Technology Today – How Technology Impacts the Practice of Law
By Saul Seinberg, Esq.²

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.

In New York, discovery is governed by Civil Practice Law and Rules (CPLR).  Business records are defined fairly broadly in CPLR 4518 and include “any writing or record.”  In 2002, CPLR 4518 was amended to expressly include electronic records and cross-referenced to State Technology Law §102, which defines an electronic record as “information evidencing any act, transaction, occurrence, event or other activity,” which information is stored by “electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.”

The original and basic rule, especially in New York courts, was that whoever requests discovery, pays for it.  The federal courts eventually permitted discovery cost allocation,   but New York courts did not, although it was clear that the use of electronic records had become tsunami-like.

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 leading New York state case is Lipco Electrical and Action Electrical v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup.).  It’s hard to believe, but at the time Lipco was in the process of being decided, back in 2003-2004, the Court noted that “Neither the parties [n]or the Court have been able to find any cases decided by New York State Courts dealing with the issue of electronic discovery,”  but a few more have been decided since then.  In this case, some discovery requests were dismissed by the court on the basis that the information requested was overly broad.  However, as to other discovery demands in which the plaintiff sought access to electronic files related to the cost and payment information of a consulting agreement and joint projects involving the plaintiff and defendant, the court struggled mightily in reconciling New York and Federal law.

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 New York law, discovery sought has to be relevant and material and not subject to claims of privilege.  Under Lipco precedent, the questions presented by a quest for electronic discovery as to availability and usability need to be answered and that may require the services of an expert and a cost analysis.  P’s discovery demand, however, is overly broad and needs to be limited.  Costs of obtaining the permissible electronic discovery are those of P, who seeks that data, subject to reallocation at trial.

So what’s “The Current Status of Electronic Discovery in New York?”  In the federal courts, the Zubulake V test will be applied and allocation for the cost of electronic discovery is possible.  Under New York rules relative to electronic discovery, the courts are still struggling with the boundaries of statutory discovery procedures created for and focused on paper documents.  Discovery of electronic information in New York is now clearly recognized as appropriate where the information sought is relevant and material and not subject to claims of privilege.  However, while allocation of electronic discovery costs has not been rejected out of hand, as by the Lipco court, it doesn’t seem as if New York courts will be willing to construe the CPLR as permitting allocation except under strictly limited circumstances, yet to be defined.

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 ABA, the failure to conduct adequate discovery (Top Ten Malpractice Traps) is a leading cause of malpractice claims.  It takes more than just keen legal knowledge to determine what electronic information might be available for review after discovery requests are made and in what forms such information may be stored or how it can be extracted and isolated.

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.

Career Corner

• The Practice of Law in New York State: An Introduction for Newly Admitted Attorneys , is available to you from the New York State Bar Association as amembers-onlybenefit.   This 43-page handbook outlines the court system in New York State, provides information about membership in and admission to the New York State Bar, addresses practice issues, and offers useful addresses, suggested reading, and helpful references.   To access this publication, click here.
  
• Are you searching for your next job opportunity, seeking career guidance, or looking to hire a new employee?   At the NYSBA online Legal Career Center, you can search jobs, post your resume (confidentially or non-confidentially), create a Career Agent and more; search hundreds of career-related articles and career advancement articles online; and post jobs and search an online resumes database of legal professionals.  Click here to visit the Career Center.
  

Become Involved…YLS Executive Committee Vacancies

The Young Lawyers Section has the following vacancies on its Executive Committee.   If you are interested and/or would like more information about any of these vacancies, please contact the YLS Chair, Timothy Benedict at tbenedict@romecitygov.com or the YLS Chair-Elect, Justina Cintrón Perino at jcint@mail.als.edu.

District Representatives– represent the Section in their judicial district; conduct at least one district event for district members; facilitate and implement communication between the Section and members; assist in the recruitment of new members; apprise the Officers and Executive Committee of issues; attend at least two Executive Committee Meetings per year; assist with and participate in YLS activities, events, programs, and projects.

6^th District        (Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, and Tompkins counties)
9^th District          (Dutchess, Orange, Putnam, Rockland, and Westchester counties)
10^th District      (Nassau and Suffolk counties)
11^th District      (Queens  County)
12^th District      (Bronx  County)

Alternate Representatives– assist the District Representative in representing the Section in their judicial district; assist the District Representative in conducting district events; assist in the recruitment of new members; apprise the Officers and Executive Committee of issues; attend at least two Executive Committee meetings per year; in lieu of the District Representative, vote at Executive Committee meetings; and assist with and participate in YLS activities, events, programs, and projects.

1^st District        (New York  County)
2^nd District        (Kings and Richmond counties)
3^rd District        (Albany, Columbia, Greene, Rensselaer, Schoharie, Sullivan, and Ulster counties)
6^th District        (Broome, Chemung, Chenango, Cortland, Delaware, Madison, Otsego, Schuyler, Tioga, and Tompkins counties)
7^th District          (Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne, and Yates counties)
8^th District        (Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, and Orleans, Wyoming counties)
10^th District      (Nassau and Suffolk counties)
11^th District      (Queens  County)
12^th District      (Bronx  County)

Section Liaisons– attend at least two meetings of the section, division, or committee to which assigned; attend at least two YLS Executive Committee meetings per year; represent and advocate the interests of the YLS and its members to the assigned section, division, or committee; assist with and participate in YLS activities, events, programs, and projects; and assist the District/Alternate Representatives in their district in conducting district events.

Antitrust Law
Elder Law
Entertainment, Arts and Sports Law
Food, Drug & Cosmetic Law
Health Law
Intellectual Property Law
Labor and Employment Law
Tax Law
Trusts and Estates Law

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