PLEASE DETACH THIS FORM AND RETURN TO CLE STAFF AT THE END OF PROGRAM EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY 10007. How to Conduct a Deposition: An Interactive Program January 27, 2014 6:00 PM – 9:00 PM I. Please rate each speaker in this session on a scale of 1 - 4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Presentation Content Written Materials Ronald C. Burke Douglas Halstrom John Halebian Jay Safer II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: ________________________________________________ _________________________________________________________________ A. Length of course: Too Long____ Too Short_____ Just Right_____ B. Scheduling of course should be: Earlier____ Later_____ Just Right_____ 2. How did you find the program facilities? Excellent Good Fair Poor Comments: ___________________________________________________________ _________________________________________________________________ 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: ___________________________________________________________ _________________________________________________________________ PLEASE DETACH THIS FORM AND RETURN TO CLE STAFF AT THE END OF PROGRAM 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) _______________________________________________ 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Website New York Law Journal Website Other (please specify)____________________________ NYCLA Newsletter NYCLA CLE Email 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1- 5, 1 being the most important). ___ Cost ___ Subject matter ___ Location ___ Date and Time ___ Provider ___ Organization of which you are a member ___ Other______________________________________________ 6. Are you a member of NYCLA? III ___ Yes ___No If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Monday, January 27, 2014. I n s t i t u t e H ow to C onduct a D eposition : A n I nteractive P rogram N Y C L A - C L E P r o g r a m C h ai r an d F ac u l t y : Ronald Burke, Kelner & Kelner P r o g r a m F ac u l t y : John Halebian, Lovell, Stewart Halebian, LLP; Douglas Halstrom, L’Abbate, Balkan, Colavita & Contini LLP; Jay Safer, Lock Lord LLP 3 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional & Non-Transitional credit hours: 3 Skills. This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit. Of these, 0 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law. Information Regarding CLE Credits and Certification How to Conduct a Deposition: An Interactive Program Monday, January 27, 2014 6:00 PM to 9:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646 How to Conduct a Deposition: An Interactive Program Monday, January 27, 2014 6:00PM – 9:00 PM AGENDA 5:30PM – 6:00PM Registration 6:00PM – 6:15PM The Plaintiff’s Perspective in a Personal Injury Case Ronald C. Burke, Kelner & Kelner 6:15PM – 6:30PM The Defendant’s Perspective in a Personal Injury Case Douglas R. Halstrom, L’Abbate Colavita & Contini LLP 6:30PM – 6:45PM The Plaintiff’s Perspective in a Complex Commercial Case John Halebian, Lovell Steward and Halebian LLP 6:45PM – 7:00PM The Defendants Perspective in a Complex Commercial Case Jay G. Safer, Locke Lord Bissell & Liddell LLP 7:00PM – 7:05PM BREAK 7:05PM – 8:00PM Preparation of a Deposition in a Complex Commercial Case John Halebian, Lovell Steward and Halebian LLP Jay G. Safer, Locke Lord Bissell & Liddell LLP 8:00PM – 8:05PM BREAK 8:05PM – 8:50PM Preparation of a Deposition in a Personal Injury Case Ronald C. Burke, Kelner & Kelner Douglas R. Halstrom, L’Abbate Colavita & Contini LLP 8:50PM – 9:00PM Panel Discussion and Question and Answer 9:00PM Certificates Distributed How to Conduct a Deposition: An Interactive Program Monday, January 27, 2014 COURSE MATERIALS Preparation for an Examination Before Trial in a Personal Injury Case The Plaintiff’s Perspective The Defendant’s Perspective Section 1 Preparation for a Deposition in a Complex Commercial Case 2 Additional Outline for Preparation in Complex Commercial Case Exhibits for Mock Deposition 3 PREPARATION FOR A DEPOSITION IN A COMPLEX COMMERCIAL CASE John Halebian, Lovell Stewart Halebian Jacobson LLP January 27, 2014 I. In the interests of reducing duplication, this outline is intended to supplement and complement the previously prepared and accompanying outline, also entitled “Preparation For a Deposition in a Complex Commercial Case,” of Jay G. Safer, Locke Lord LLP, a coparticipant in "Anatomy of a Deposition" II. DISCOVERY ISSUES TO CONSIDER IN DEPOSITIONS IN COMPLEX COMMERCIAL LITIGATION A. Sheer volume of documents produced in complex commercial litigation, numbering in tens of thousands, hundreds of thousands or millions of pages, will make preparing to take a deposition particularly challenging B. Large number of potential witnesses also makes it challenging to decide which documents to use with which witnesses C. Volume of documents and witnesses makes use of technology more necessary and indispensable – should look into software programs which collect and facilitate the review and analysis of documents that will be used in cross-examining and defending witnesses III. GENERAL PRINCIPLES A. PREPARATION PREPARATION PREPARATION 1. In those cases where the disputed facts cannot be conclusively determined by documents, the deposition is probably the most important discovery tool and the one that requires the greatest care and preparation. a) If an initial document request omitted an important request for a category of documents, another document request can usually be easily served. b) The same can be said for interrogatories. c) If you omit to ask a key question at a deposition, of fail to pose it effectively, you will not likely get another opportunity. 2. At the inception of the litigation, you need to have a clear road map regarding the facts to be established to either prove or disprove all essential elements of the claim or affirmative 1 defenses. But as the case progresses through discovery, the road map will need to be revised to accommodate twists and turns in the development of the facts. 3. You need to have absolute command over the facts and documents. 4. You should at least have an outline of the questions that you intend to ask of the witness and have the more important or trickier questions written out word for word. B. THE PURPOSE OF A DEPOSITION 1. EVIDENCE AT TRIAL a) Under certain circumstances deposition transcripts can be read as affirmative evidence to establish facts as if the witness had been testifying at trial. 2. It is important that a deposition transcript be as literate as possible, as a disjointed question and answer exchange will not be particularly effective for use in pre-trial motions or at trial. 3. DISCOVERY a) A deposition is a prime opportunity to discover information to discover leads for other evidence. b) A deposition allows the examiner to probe the knowledge, information or belief of a witness. c) Using a deposition as a discovery tool to seek new information does not mean that a deposition should be a fishing expedition. d) A deposition should be used to try to limit and restrict the reach of an adverse witness' testimony as best as possible. e) Even though a deposition is not trial testimony, as such, you still need to be careful not to ask questions that make out the other side's case, i.e. "hit me" questions. 3. IMPEACHMENT OF WITNESS a) Deposition transcripts can be read by an opposing party to impeach the credibility of a witness who gives testimony at trial which is contradictory to testimony at a prior deposition. b) For purposes of impeachment, you want to make sure that the witness signs and returns the original deposition transcript. 4. WITNESS EVALUATION a) What a witness actually says in testimony is obviously critical. b) The manner in which a witness testifies is also important with respect to the witness' candor, honesty and responsiveness. 2 c) A deposition is an opportunity for your own client or witness to demonstrate to the other side how compelling and persuasive a witness that person might appear to a jury, especially in cases of "he said, she said" where credibility is the key issue. On the other hand, your examination of an adverse witness may reveal that even though the witness is providing useful testimony for his or her side, the demeanor of the witness, particularly if captured on videotape, is such that the deponent will not impress a jury as a credible witness. C. DIFFERENCES BETWEEN FEDERAL & STATE COURT 1. STATE COURT-see deposition rules attached to the J. Safer outline a) Two different sets of rules regarding commercial cases (1) The Commercial Division -- commercial cases well over $100k - - obviously geared to commercial cases and more judicial supervision and guidance. The Commercial Division Rules refer to a case scheduling order, which relates to phases of discovery and various deadlines, but generally it would not be as detailed as you would find in federal court. (2) IAS Part - other cases -- There is no case management order that requires lawyers for both sides to lay out, at the inception of the litigation, a relatively detailed discovery plan with appropriate deadlines, i.e. how many depositions will be taken and a rough schedule. b) The CPLR gives priority to defendant. c) There is no predetermined limit on the number or length of depositions. (1) some depositions may last for days at a time (2) a deposition might start early in morning and go late in evening 2. FEDERAL COURT a) A detailed case management order is required. The parties must meet and confer on all aspects of discovery (see Fed. R. Civ P. 16). b) A case management order will force the parties to focus on the number of witnesses and depositions early on - you can't make it up as you go along. c) The importance of depositions in the SDNY may be greater because of the relatively strict limitations on substantive and contention interrogatories early in the discovery process. (1) Normally a limit on 10 depositions per side, unless otherwise agreed to by the parties or ordered by court (see Fed. R. Civ. P. 30(a)(2)(A)(i)). (2) Normally a limit of one seven hour day of testimony per witness - Seven hours of testimony not including breaks, 3 unless otherwise agreed to by parties or ordered by court (see Fed. R. Civ. P. 30(d)(1)). (3) At the time of the meet and confer with the other side on the case management order and discovery plan should explore whether you will need more than 10 depositions per side or whether you expect to need more than a day for a witness and come to agreement. (4) Running the clock issues in federal court depositions (a) Because of the specific time limit in federal court, i.e. 7 hours of testimony, there is a built in incentive for a witness or his counsel to be difficult or to waste time because it uses up a valuable resource, i.e. time. (b) You also need to plan ahead to leave time for your adversary to cross-examine the witness, especially if you are deposing a non-party witness, as out of seven hours of testimony, the other side might ask for 2-3 hours and that might lead to a dispute about dividing up the time D. MISCELLANEOUS CONSIDERATIONS 1. STRATEGIES REGARDING LOCATION OF WITNESSES AND OUT-OF-TOWN DEPOSITIONS a) Try to take the deposition where it is convenient for the witness where a non-party needs to be subpoenaed, there is not much choice as to the location of the deposition, i.e. where the witness is located. b) Where a party is located outside of the jurisdiction where the action is pending, there may be disputes with opposing counsel regarding taking the deposition outside of the jurisdiction, although requests for scheduling a deposition for Fridays or Mondays in Florida in mid winter are usually well received. c) Be prepared to engage in a certain amount of horse trading in accommodating the location of each other’s witnesses. 2. PARTY/ NON-PARTY DEPOSITIONS a) PARTY (1) A party should be familiar with the facts, claims, and defenses. (2) A party's testimony is more likely to be used in a motion for summary judgment, if the case is appropriate for such a motion, as damaging testimony can be used as an admission more easily (3) Accordingly, the deposition is an opportunity to provide sworn testimony to make out a factual basis for obtaining or fending off summary judgment. 4 (4) A party’s failure to answer questions or provide testimony can lead to dismissal of claims or defense. b) NON-PARTY (1) A non-party may or may not be outside the control of the parties to the litigation. (2) You should consider ways to obtain information from a friendly non-party witness prior to the deposition. (a) If the non-party witness is not represented by counsel you can call the witness yourself. i) if you are taking the deposition of the non-party witness, and the person is willing to meet with you, be very careful, as nothing that you say is likely to be privileged and it may be repeated back in testimony. ii) Take good notes of your discussions with the nonparty witness, should the proposed non-party witness change his or her testimony between talking to you and the actual deposition. (b) If a friendly non-party witness is represented by counsel - use the non-party witness' counsel as a buffer to sound out the witness on potential areas of questioning. i) You can exchange information with the other attorney, which still could be discoverable. ii) You can convey information to and receive information from the counsel for the non-party witness that can help you in your deposition with out ever having spoken to the non-party witness yourself. Make every effort to resolve discovery disputes with opposing counsel -judges and magistrates really hate listening to attorneys bicker about petty discovery issues - obviously if dealing with a serious issue - don't cave simply to avoid court. 3. RESOLVE DISCOVERY DISPUTES --Make every effort to resolve deposition discovery disputes with opposing counsel. Judges and magistrates loathe listening to attorneys bickering over petty discovery issues—obviously, if you are dealing with a serious discovery issue or disclosure don’t compromise simply to avoid the court 4. WHAT ARE THE ”USUAL STIPULATIONS” IN FEDERAL COURT? a) The filing and sealing of the transcript are waived. b) All objections, except as to the form of the question, are waived until the time of trial. c) The deposition may be signed and sworn before any officer authorized to administer an oath. 5. TECHNOLOGY CONSIDERATIONS a) Video recording the deposition (1) not as expensive as you think 5 (2) most court reporters have this capability (3) should seriously consider including video for particularly important or out-of-town witnesses who cannot be compelled to appear at a trial b) Real-time or live deposition transcript (1) essentially a live feed of testimony into laptop computer (2) useful tool with difficult witness (3) can quickly review questions and answers (4) can go back and search for testimony that not sure about (5) can review during breaks, e.g. lunch break (6) the file will stay on the computer -- if multiple day deposition, can review overnight IV. TAKING THE DEPOSITION A. PREPARING TO TAKE A DEPOSITION 1. In preparing to take a deposition do your own investigation of the adverse party or a non-party deposition witness. Do not rely entirely upon what you received in response to a document request or interrogatories. You may uncover facts or information that go to the merits of the case or the witness' credibility, such as other lawsuits, a pattern of wrongdoing, or a questionable manner of doing business. 2. In considering the order of depositions, particularly in business litigation, unless there is a good reason to do otherwise, start with lower level employees and work up the chain of command. Save the president of the company or the chairman of the board for last. 3. Make an outline of questions. 4. Key your outline into proposed deposition exhibits but at the same time don't be a slave to the documents. Think outside of the box, i.e. outside of the documents. 5. Consider rationing particularly good questions or documents among witnesses. Don’t necessarily use good questions, which might take an adverse witness by surprise, on less important witnesses. It may unnecessarily alert your adversary to a line of questions and cause the more important witness to be better prepared. The same concept is applicable to documents. If you have a particularly good document don’t feel compelled to question a witness about it simply because that witness wrote the document or is referred to in the document if the same document can be used more effectively against someone else. 6. Make sure you have enough copies of exhibits for everyone. 6 7. Try to bring another attorney or paralegal to assist you in handling exhibits and taking notes. 8. Remember that you do not need to prove or disprove every disputed fact through every witness B. EXAMINING THE WITNESS 1. In examining the adverse party or key witnesses for the adverse party, ask the obvious questions about the factual basis of the allegations in the complaint or the factual basis of defenses in the answer. 2. Don't be a slave to your outline of questions. When asking questions from your outline be prepared to improvise - follow up on lines of questions that present themselves from the witness' testimony that were not in the outline. However, restrain yourself from unnecessarily fishing around -- there is a definite downside. 3. Use the deposition as an opportunity to discover the existence and location of documents -- ask about document retention policies. a) Inquire as to who was responsible for responding to document requests and interrogatories. b) Inquire as to others who have knowledge of the existence or location of documents or relevant facts. 4. Try to establish some type of rapport with even an adverse witness as some people just like to talk and may say something helpful -- try to be solicitous and complementary of the person. 5. There is no purpose or benefit to being overly aggressive or nasty with an adverse witness. 6. In considering the order of questions try to ask less aggressive and controversial questions early in the deposition and save more antagonistic questions for end you do not want to be fighting with witness at the start of the deposition. 7. Try to keep the sensitive or delicate questions for the end, so that if the witness becomes upset with the questions it doesn't disrupt any more of the deposition than was necessary. 8. Do not let a witness take a break during a pending question, particularly if it is an important question. 9. Handling objections when you are taking the deposition 7 a) When examiners start asking the tough critical questions the response of some opposing attorneys is simply to constantly object to the form of the question, either because of uncertainty as to whether the question is truly objectionable, or simply to warn and/or disrupt the deposition. b) If you are opposed by an unusually obstructive attorney making a lot of marginal objections, simply ask the attorney to explain the nature of the objection on the record so that you have an opportunity to correct the question. If you do this a few times in response to truly frivolous objections, it may deter further improper conduct. c) You may also be confronted with an opposing counsel who not only objects "to the form of the question," but gives a detailed explanation of the objection in order to alert and coach the witness, i.e. a speaking objection. This is improper and you should say something about it if it becomes abusive and attempt to stop it. 10. Do not ask too many questions – know when to stop. Do not ruin a good question and answer by asking one too many questions and allowing the witness to wiggle out of or undo a prior answer. V. DEFENDING THE DEPOSITION A. PREPARING THE WITNESS FOR THE DEPOSITION 1. In preparing to defend a deposition of your own client or witness do not hesitate to do your own investigation of their background or anything that the opposing counsel might come across in doing their own investigation. a) Do not completely rely on what your client tells you even if he or she is most honest person in world - engage in a reasonable degree of independent factual investigation. b) You may uncover information or issues that may go to the merits of the case and/or witness credibility - other lawsuits a pattern of wrongdoing - a questionable manner of doing business. c) Clients often times honestly fail to recall things about their background or prior experience that may become an issue in the litigation, you should know all of the relevant information that the other side likely knows from their own investigation. 2. When sitting down with your client or witness to prepare for his or her deposition allocate twice as much time as you think you will need. a) Something almost always comes up that no one thought about 8 or considered and you need adequate time to analyze and understand all the issues. Something may arise that requires you to speak to other people to get the full story. You cannot easily take care of these issues at the last minute. b) if a lot of information needs to be covered, consider breaking up the preparation of the witness over a couple days. Witnesses can only absorb so much in one day. 3. Always advise your witness to tell the truth - this does not mean to volunteer. 4. Review of Documents in Preparation for a Deposition a) Be aware that the examiner will likely ask what docs were reviewed in preparation of deposition so be careful what you show to a witness. b) Be careful about showing the witness deposition transcripts or testimony of a prior witness in the same action relating to similar issues-- orally tell the client or witness what was said. c) Discourage the client or witness from making notes to help prepare for his or her deposition - notes could be discoverable. d) Discourage the client or witness from bringing documents to the deposition 5. If the witness is a party to the litigation, the party should be reasonably familiar with the claims or defenses. The witness is not expected to answer questions like a lawyer or give legal opinions or conclusions but the witness should be able to testify to basic facts that support claims or defenses. 6. Advise the witness not to bring any papers or documents with him or her to the deposition. It can only cause a problem. B. DEFENDING THE WITNESS AT THE DEPOSITION 1. A clean accurate transcript is the goal. a) The witness should not guess or speculate even as to information that the witness thinks he or she should know. b) The witness should not cutoff the questioner, interrupt or talk at the same time, the court reporter will not be able to take down an accurate transcript 2. Making Objections and interjecting in the deposition a) Do not come off as being obstructive or hiding something. b) The starting point is that objections except as to form of question are preserved to time of trial. c) Do not object to every genuinely objectionable question. 9 Use your common sense and good judgment. d) Obviously, be prepared to strenuously object to any question relating to an important issue in the case. e) If your client starts to answer a question before it is completed, tell him or her to wait for the question to be finished. f) If your client starts an answer with "I guess" or "My speculation is that," advise the client not to guess or engage in speculation g) Be judicious in making speaking objections. As stated above,making any speaking objection is probably inappropriate but may be tolerated if done sparingly. Making an excessive number of speaking objections may be construed as coaching the witness h) Do not let your witness speak "off the record." 3. Attorney-client communications during the deposition a) Try to minimize discussions with your witness during the deposition. However, if the witness genuinely needs guidance, provide it. b) Be careful during breaks - the opposing attorney can question the witness about what subjects were discussed with counsel c) Even worse, see Jay G. Safer's outline (p. 3, 4(k))which refers to a potential problem in some jurisdictions which restrict communications between the witness and counsel in the course of a deposition and possible disclosure of those discussions C. Instructing a witness not to answer a question 1. Generally, you can only instruct a witness not to answer a question when the answer would disclose attorney-client communications 2. In all other instances, be very, very careful. 3. An irrelevant question is not grounds to instruct a witness not to answer a question. D. When your witness makes a serious error or something goes terribly wrong -- DO NOT PANIC 1. The pro-active strategy. Explain to the witness, before hand, the strategy of taking breaks at an opportune time, e.g. when the witness understands that the opposing counsel is headed in a direction that was not previously discussed with counsel or the 10 witness is unsure of how to answer an anticipated difficult question. Try to take a break and get the witness out of the room before the question is asked or the difficulty arises. 2. If the witness is being properly asked key questions in the litigation, be very careful and hesitant about interjecting or interrupting in the middle of pending questions. 3. If your witness or client seriously errs, or something entirely unexpected comes to light, look for a convenient breaking point in the testimony--if the witness has been questioned for close to an hour, counsel can simply ask if it's a good time to take a break. 4. Take the witness out of the room and determine what happened -- if necessary, call a more senior attorney back at your office for advice. a) If after speaking with the witness, you believe that you have all of the facts and can remedy the problem during the deposition, then do so. b) If after speaking to the witness, you believe that you don't have all of the facts, be careful not to dig yourself into a deeper hole 5. PLAN A - try to have the witness correct the answer in connection with a subsequent related question and answer 6. PLAN B - the examining attorney may ask the witness at the end of his or her examination if the witness would like to correct any answers that had been previously given. This is the opportunity to clean up the testimony without it being prompted by the witness' own lawyer. 7. PLAN C - correct the answer on cross-examination. 8. PLAN D - correct the answer in the deposition transcript. This is the least effective means of dealing with the problem as it will be viewed, as it really is, lawyer driven. 11 Exhibits for Mock Deposition NYC 551447.1 98400 00030 1/18/2005 04:15pm ------------------------------- X D.J. JOHNNY CRASH, individually, and on : : behalf of similarly situated individuals, : CLASS ACTION COMPLAINT : Plaintiff, : : Vs. : : ORANGE COMPUTER, INC. : Defendant - --- --- --- --- --- --- --- --- --- --- --- --- --- --- X NATURE OF THE ACTION Plaintiff D.J. Johnny Crash ("Plaintiff") brings this action against Orange Computer Inc. (“Orange”) individually on behalf of himself and on behalf of all other similarly situated persons who have purchased online music recordings directly from Orange’s online Orange Tree music store for playback on portable digital music players, including, but not limited to the Opod, and more recently the Ophone and the Opad. In the normal course of business, a music Compact Disc ("CD") purchased at any neighborhood music store is playable on any CD player of the customer's choosing. Thus, it would be egregious and unlawful for a major retailer to require that all music CDs purchased by consumers at its stores be played only with CD players purchased at one if its stores. Yet, this is precisely what Orange has done. Orange, which possesses monopoly market power in the relevant market for the legal sale of online digital music files through its "Orange Tree" online music store, prevents consumers who purchase music recordings from the Orange Tree online music store from playing this music on any portable digital music player other than Orange's own portable digital music player, the "OrangePod," and more recently, the Ophone and Opad. This unlawful bundling and tying arrangement violates the federal antitrust laws and Utopia's unfair competition law by suppressing competition, denying consumer choice, and forcing consumers to pay supra-competitive prices for their digital portable music players. Worse yet, Orange similarly requires that owners of its Orange-Pod portable digital music player, its Ophone and Opad, only be able to purchase music online to play directly on the Opod, the Ophone and the Opad from Orange's own Orange Tree store. Orange Tree has rigged the hardware and software in its aforementioned various devices such that the device will not directly play any music files originating from 1. -2NYC 551447.1 98400 00030 1/18/2005 04:15pm online music stores other than the Orange Tree music store. Plaintiff brings this class action individually and on behalf of all other similarly situated consumers to seek redress for Defendant's unlawful conduct. -3NYC 551447.1 98400 00030 1/18/2005 04:15pm X-Originating-IP: (184.108.40.206] Subject: Orange Peel Music Player and Orange Tree Music Store Date: Mon, 20 Feb 2003 16:02:01 -0500 X-MS-Has-Attach: yes X-MS-TNEF -Correlator: Thread-Topic: : Orange Peel Music Player and Orange Tree Music Store Thread-Index: AcTm1 dKSKSGo!HtrSDuP2D Wxj78eiwAASr+A From: "Jack Trump" [email protected]> To: <"Guy Research" <[email protected]>, "Tom Edison" <[email protected]>, CC: : "Job Stevens" [email protected]>, "Alec Bell"<[email protected]>, "Clarence Darrow" <[email protected]>, X-SpamH-CheckiP: 220.127.116.11 X-SpamH-ID: iBKKwo5w013789 X-OriginalArrivalTime: 20 Feb 2003 20:58:56.0149 (UTC) FILET1ME=[B83B2450:0 1C4E6D6] It would be extremely helpful to maximize further sales of the Orange Peel music players and the Orange Tree songs, vis-a-vis our competition, especially with our already dominant market position in both music players and the sale of on-line music, if the music player hardware and the downloadable music software could be encrypted to prevent the use of competitors' products. Thus, consumers would have to buy the Orange Peel music player in order to play songs down loaded from our music store and consumers who owned the Orange Peel music player would be required to download music only from our Orange Tree Music Store to play on the Orange Peel music player. Do you think that you can develop something along these lines? Do you think that we should consult with the lawyers about this? **************************************************** \ This e-mail and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain corporate proprietary and/or legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you receive this email in error please immediately notify me at (212) 555-1234 and permanently delete the original copy and any copy of any e-mail, and any printout thereof. **************************************************** Faculty Biographies Jay G. Safer Jay G. Safer Partner Jay G. Safer is a partner in Locke Lord's New York office and has experience handling complex litigation and arbitration in the United States and abroad. Jay represents clients in matters concerning contracts, antitrust, securities, RICO, qui tam, international litigation and arbitration, including application of the New York Convention and enforcement of foreign judgments and arbitration awards, insurance, construction, real estate, employment, media, product liability, health care, professional ethics, financial, constitutional and regulatory issues. He also counsels clients on commercial matters, including protection and preventive measures, creation of risk litigation plans, e-signature, e-discovery and ereadiness, and pre-litigation analysis. Jay has handled numerous cases involving these subjects. Jay was appointed by the Chief Judge of the State of New York, the Hon. Jonathan Lippman, to the newly created permanent Commercial Division Advisory Council that will advise the Chief Judge and the Judiciary on all matters involving the Commercial Division of the State of New York. Jay was appointed to serve on the Planning Committee for the Judicial Conference of the U.S. Court of Appeals for the Second Circuit, which he attended. Jay was appointed by Chief Judge Judith S. Kaye to serve on a Special Commission on the Future of the New York State Courts. The Commission is composed of lawyers, civic leaders, government and private sector representatives, academicians, and sitting and former trial and appellate court judges. The Commission’s charge is to redesign the state’s trial court structure. Jay is the Past Chair of the 2,000 member Federal & Commercial Litigation Section of the New York State Bar Association and is the CoChair of its Federal Judiciary Committee. Jay was named a member of the Lawyers Committee of the National Center for State Courts. Jay has served as a lecturer on panels, bench-bar forums, and is a member of committees with judges and attorneys discussing a wide range of civil litigation issues, international arbitration and litigation skills, including cross examination for the National Institute for Trial Advocacy, professional ethics, and e-discovery. Jay has been a member of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) and The Sedona Three World Financial Center New York, New York 10281-2101 Direct Dial: (212) 812-8305 Direct Fax: (212) 812-8365 [email protected] Practices Antitrust Banking & Financial Institutions Litigation Business Litigation & Dispute Resolution Business Technology Class Actions Climate Change Team Energy Litigation Health Care Health Care Compliance, Governance, Investigations & Enforcement Insurance Insurance: Commercial Litigation Insurance: Litigation & Counseling International Arbitration Labor & Employment Physicians & Physician Groups Rico Litigation Securities Litigation Trial Lawyer Education J.D., Columbia Law School, 1971 B.A., Vanderbilt University, 1968 Bar Admissions New York, 1972 U.S. Supreme Court Court Admissions U.S. Court of Appeals for the Second Circuit U.S. District Court for the Southern District of New York Selected Attorneys | 1 | Jay G. Safer Conference Working Group on International Electronic Information Management, Discovery and Disclosure (WG6). Jay has been a member of the Advisory Board of the Institute for Transnational Arbitration (ITA). Professional History Partner, Locke Lord LLP Professional Affiliations and Awards Named as a New York SuperLawyer Named as a 2013 Top Rated Lawyer in Commercial Litigation Named as a 2013 Top Rated Lawyer in Banking and Finance Law Named as a 2013 Top Rated Lawyer in Technology Law Achieved AV Preeminent® Peer Review Rating Adjunct Professor of Law, Fordham University Law School, Course Title: “Litigation Management for the International Lawyer” New York State Bar Association, Elected as Vice President, First Judicial District and Member of the NYSBA Executive Committee New York State Bar Association, Co-Chair, Federal Judiciary Committee and Member of Executive Committee, Commercial & Federal Litigation Section New York State Bar Association, Co-Chair Litigation Committee and Member of Executive Committee, International Section New York State Bar Association, Commercial & Federal Litigation Section, Past Chair New York City Bar Association, Past Chair of Council on Judicial Administration, Special Committee on Judicial Selection, Committee on State Courts of Superior Jurisdiction Federal Bar Council Federal Bar Association, Chair International Litigation Committee American Bar Association New York County Lawyers Association, Member of the Board of Directors New York County Lawyers Association, Co-Chair of the Foreign and International Law Committee New York County Lawyers Association, Committee on Election Law, Past Co-Chair New York State Supreme Court, Advisory Committee on the CPLR to the Chief Administrative Judge of New York State New York State Supreme Court, Advisory Committee on the U.S. District Court for the Eastern District of New York U.S. Court of Appeals for the Third Circuit U.S. Court of Appeals for the Eleventh Circuit U.S. District Court for the Northern District of New York U.S. District Court for the District of Connecticut U.S. District Court for the Northern District of Illinois State Courts, New York Selected Attorneys | 2 | Jay G. Safer Commercial Division to the Chief Administrative Judge of New York State New York State Supreme Court Commercial Division, Advisory Committee on the New York County Commercial Division and Kings County Commercial Division Judges National Center for State Courts, Lawyers' Committee Conner Inn of Court Fund and Committee for Modern Courts, Legislative Co-Chair Named American Bar Foundation Fellow Named New York Bar Foundation Fellow Member of Chartered Institute of Arbitrators Publications & Presentations Mr. Safer has made appearances on television and authored numerous articles and publications including: Author, "Magistrate Judges and Special Masters," Chapter 31, Third Edition of Business and Commercial Litigation in Federal Courts, a project of the American Bar Association Section of Litigation and Thomson West Presenter, "How Inside and Outside Litigation Counsel Can add Value and Reduce Costs for Corporate Clients – Fee Arrangements, Budgeting and Billing," NYSBA Annual Meeting (Summer 2011) Contributor, "Brochure: International Arbitration," Locke Lord (April 26, 2011) Interview Subject, "Cover Story regarding Project Finance in India," Lex Witness (October 15, 2010) Co-Author, "Client Alert: Supreme Court Rules No Class Arbitration Absent Contractual Basis," Locke Lord (April 29, 2010) Panelist, "Implementation – What Methods, If Any, Can Be Employed To Promote The Existing Rules’ Attempts to Protect Private Identifier Information From Information Access," Conference on Privacy and internet Access to Court Files, Fordham University School of Law (April 13, 2010) Featured, "City Bar Urges Statewide Rule Limiting Personal Date in Civil Filings," New York Law Journal (February 17, 2010) Contributor, "e-Matters: 6-Point Framework," Locke Lord (October 8, 2009) Contributor, "e-Matters: ESIGN Workshops," Locke Lord (October 1, 2009) Selected Attorneys | 3 | Jay G. Safer Co-Author, "e-Matters Alert: 2008 Case Law Review" (January 26, 2009) Client Alert: Second Circuit, in Case of First Impression, Interprets Class Action Fairness Act to Provide Federal Jurisdiction for State Law Consumer Fraud Action Not Involving Nationally Traded Securities (May 19, 2008). Co-Author, Lord, Bissell & Brook LLP Client Alert: From EDiscovery To E-Admissibility Lorraine v. Markel And What May Follow. Co-Author, “Contracts,” Commercial Litigation in New York State Courts. Co-Author, “Magistrate Judges and Special Masters,” Business and Commercial Litigation in Federal Courts. Co-Author, Case Study on Successful Partnering Between Inside and Outside Counsel. Selected Attorneys | 4 | Douglas R. Halstrom is a partner at the law firm of L’Abbate, Balkan, Colavita & Contini, L.L.P., with offices in Garden City, New York and Livingston, New Jersey. Mr. Halstrom is a trial attorney and member of the Design Professionals Practice Group, concentrating primarily in the defense of architects, engineers and other design professionals. He has been with the firm since 1990 and became a partner in the firm in the year 2000. Mr. Halstrom’s experience in defending design professionals includes commercial matters involving building designs and related matters, as well as personal injury claims involving construction workers injured on the job. Mr. Halstrom has experience before the Courts of New York and New Jersey at the trial and appellate levels, as well as the United States District Courts for the Southern and Eastern Districts of New York and District of New Jersey. Education: St. Louis University School of Law J.D., 1990 Admission: New Jersey, 1990 New York, 1991 U.S. District Courts, Southern and Eastern Districts of New York, 1991 District of New Jersey, 1990 U.S. Court of Appeals, Third Circuit, 2000 RONALD C. BURKE Counsel to Kelner and Kelner Graduate of New York Law School – 1983 Admitted to the New York State Bar, the United States District Courts for the Southern and Eastern Districts – 1984 Mr. Burke has over 20 years experience as a personal injury and medical malpractice trial lawyer, with a record of many multi-million dollar verdicts and settlements. As counsel to Kelner and Kelner, Mr. Burke represents victims in personal injury, wrongful death and medical malpractice cases. John Halebian, Partner Lovell Stewart Halebian Jacobson LLP 317 Madison Avenue, 21st Floor New York, New York 10017 (212) 500-5010 (212) 682-8042 (direct) [email protected] John Halebian, a named partner with the firm, graduated from Georgetown University (undergraduate) and Villanova Law School where he served on the Law Review as a Case and Comments Editor and as Editor-in-Chief of The Docket, the law school newspaper. Since graduating from law school, he has specialized in federal and state corporate and commercial litigation with an emphasis on class actions and securities litigation. Earlier in his legal career, Mr. Halebian had primary responsibility for handling numerous complex commercial litigations and federal securities class actions that involved the defense of lawyers and accountants, and officers and directors of public companies. Several of these litigations involved jury and bench trials. Subsequently, Mr. Halebian’s practice concentrated on representing shareholders in securities class action and shareholder derivative litigation and he has continued to handle numerous large complex corporate and commercial litigations. Mr. Halebian has served as lead or co-lead counsel or as a member of an executive or steering committee in numerous class action shareholder litigations around the country that were successfully prosecuted to conclusion. In 2002, Mr. Halebian was appointed to the Executive Committee of the Global Crossing Securities Litigation in the Southern District of New York, which was settled for approximately $450 million. More recently, Mr. Halebian has been appointed as lead counsel or a member of an executive committee in several nationwide wage and hour class actions that have led to significant settlements or are still pending. Mr. Halebian has also prosecuted, defended and tried to conclusion numerous complex commercial and securities fraud litigations on behalf of individual claimants and companies before the New York Stock Exchange the National Association of Securities Dealers and the American Arbitration Association. These actions generally involved brokerage customer claims of churning or unsuitable investments. Admitted: 1978, New York; United States Supreme Court; U.S. Court of Appeals, Second, Third, Eighth and Ninth Circuits and U.S. District Court, Southern and Eastern Districts of New York. Member: The Association of the Bar of the City of New York; American Bar Association; Federal Bar Council; and the American Association for Justice.
© Copyright 2019