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How to Conduct a Deposition: An Interactive Program
January 27, 2014 6:00 PM – 9:00 PM
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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
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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: (99.186.111.82]
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" .g.trump.sales@Orange.com>
To: <"Guy Research" <g.research.development@orange.com>, "Tom Edison"
<t.edison@orange.com>,
CC: : "Job Stevens" .g.stevens@orange.com>, "Alec Bell"<a.bell@orange.com>,
"Clarence Darrow" <c.darrow@orange.com>, X-SpamH-CheckiP: 160.79.151.130
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?
****************************************************
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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
jsafer@lockelord.com
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
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Partner, Locke Lord LLP
Professional Affiliations and Awards
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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
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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 |
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Jay G. Safer
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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 |
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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)
jhalebian@lshllp.com
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.