Pretrial Practice in the Southern District of New York - Thurgood Marshall Courthouse

 
 

Federal Bar Association

Southern District New York Chapter & Civil Rights Section

In Conjunction with New York County Lawyers’ Association

 

Cordially Invites You to this CLE:

 

Pre-Trial Practice in the Southern District of New York

A Panel Discussion with the Magistrate Judges of the SDNY 

November 13, 2014

4:00 -7:00PM 

SDNY Thurgood Marshall Courthouse,

40 Centre Street, Room 506, New York, NY 

Topics Include:

Initial Conference, Discovery & Sanctions, Settlement Conferences,

Consent to Proceed before a Magistrate Judge, and Best Practices

 

3 NY Credits: 0.5 Ethics; 1.5 Skills; 1 PP/LPM; Transitional and Non-transitional

The New York County Lawyers’ Association is currently certified as an Accredited Provider of

Continuing Legal Education in New York and New Jersey.

        Moderator: Wylie Stecklow, Stecklow Cohen & Thompson

 

        Scheduled Panelists:

           Hon. Magistrate Judge Michael Dolinger,

           Hon. Magistrate Judge Ronald Ellis,    

           Hon. Magistrate Judge Debra Freeman,

           Hon. Chief Magistrate Judge Frank Maas,   
           Hon. Magistrate Judge Judith McCarthy,
           Hon. Magistrate Judge Sarah Netburn,
           Hon. Magistrate Judge Henry Pitman,
           Hon. Magistrate Judge Lisa Margaret Smith

Will include discussion among panelists and Q&A from participants

Online Registration: http://tinyurl.com/SDNY-Pre-Trial-CLE

 

FBA and NYCLA Members: $40, all others $55*

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd 

Copyright Law: Win Before You Begin - Discovery and Pre-Trial Investigations

Ray Dowd & Luke McGrath- Discovery and Pre-Trial Investigations West LegalEd Center CLE 2.20.13 by

Just wrapped up a terrific audio program for West LegalEdCenter with my partner Luke McGrath. The audio should be available for download soon. You can download my other available audio programs at www.westlegaledcenter.com. www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory. Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here

Rule 26(e) of the Federal Rules of Civil Procedure: Production of Images After Discovery Cut-Off Ok'd

In Teter v. Glass Onion, Inc, 2010 WL 2945520 (W.D. Mo. July 22, 2010), the court considered a motion pursuant to Rule 37(c) of the Federal Rules of Procedure to exclude from evidence images culled from the internet and Internet Archive after the discovery cutoff.

Rule 26(e) of the Federal Rules of Civil Procedure provides:

(e) Supplementation of Disclosures and Responses.

(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.

 In Teter, the plaintiff requested all documents that were to be used at trial during a formal discovery request.
 
Rule 37(c) of the Federal Rules of Civil Procedure provides:
 
(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

[ * * * ]

In this case, the materials were provided 20 days after the close of discovery.  The court found that the images were publicly available to both sides from a public domain source, the adversary could not possibly be prejudiced.

I cover Discovery in Chapter 14 of the Copyright Litigation Handbook.  Not every judge takes Teter's common-sense view.   And Teter should not be seen as a free pass from a discovery cut-off.   When discovery has already been produced and new materials come in, scan the new materials, privilege review/redact/log them, and get them out right away with a cover letter saying you are supplementing pursuant to Rule 26(e).  Not every judge will permit documents produced after a discovery cutoff to be used in a trial.  


Purchase Copyright Litigation Handbook from West here