Be the attorney you dreamed of being. Jump start your career with Tully Rinckey PLLC: http://www.tullylegal.com/careers/ October, 2015 - This course will be led by Tully Rinckey PLLC Partner Mario D. Cometti, Esq. Mr. Cometti will draw upon his experience as a former partner in a New York City law firm representing high net worth individuals in complex litigation proceedings to assist attorneys of all levels of skill and experience in improving their legal knowledge regarding discovery procedures and techniques. Mr. Cometti will provide guidance to attorneys on the Civil Practice Laws and Rules and other applicable laws in the context of discovery and successful strategies for prolonged or complicate discovery schedules. Mr. Cometti will also provide insight into the potential penalties and remedies available when a party fails to comply with discovery demands.

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Mario D. Cometti, Esq.
Tully Rinckey PLLC
441 New Karner Road
Albany, New York 12205
518-218-7100
mcometti@1888law4life.com
How to Prepare forComplex Litigation
Discovery
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About YourPresenter
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 Tully Rinckey PLLC Partner
 Mr. Cometti concentrates his practice on Family and Matrimonial Law and
Civil Litigation.
 Prior to joining Tully Rinckey, Mr. Cometti was a partner at a civil litigation
firm with offices in Fairfield County, Conn. and New York City.
 Mr. Cometti has extensive experience representing parties – including high
net worth individuals – in complex divorce proceedings.
 He also has represented health care systems and provider groups as a
consultant in the ever-changing field of health care law and, when
necessary, in litigation against insurers and payors for the in various types
cases such as contract disputes and with respect to the recovery of fees.
 Mr. Cometti received a juris doctorate from Tulane Law School a bachelor’s
degree from Fordham University.

3. Examples of casesExamples of cases
 What defines a “complex” litigation case? There are classic
examples, e.g., mass torts, antitrust, civil rights, employment
discrimination, characterized by multiple parties and multiple
claims based on new and complicated theories.
 However, what it really means is any case in which there are
legal issues involving multiple areas of law, numerous parties
and possibly extensive discovery.
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 Meeting with client-
– Probably the most important thing you can do is to meet with
your client and get a handle as soon as possible as to the
issues that may be involved in the case.
 Checklist:Checklist:
– Who are the cast of characters? On both sides.
 Special issue - Are their potential witnesses who are no
longer employees of the employer?
 EEO C v. Ste rling Je we le rs Inc. , 2012 U.S. Dist. LEXIS
67220 (W.D.N.Y. 2012)
 Cham be rs v. CapitalCitie s/ABC, 159 F.R.D. 441 (S.D.N.Y.
1995)
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Assessing the complexity and preparing forAssessing the complexity and preparing for
the long haulthe long haul

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– What is the chain of command in dealing
and updating your client and in obtaining
authority?
– Discovery
 What will you need to prove your case and how
can you simplify?
 What are they going to ask for?
– Creating a committee to deal with the various
departments of your client and how each
separate unit may retain documents
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Assessing the complexity and preparing forAssessing the complexity and preparing for
the long haulthe long haul

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 Confidentiality order.
– Judd v. Take -Two Inte ractive So ftware , Inc. , 2008
U.S. Dist. LEXIS 26920 (S.D.N.Y. 2008)
– Generally, parties cannot prevent opposing parties from informally
interviewing potential witness and must disclose known information
about potential witnesses upon demand during discovery.
– Attachment 1: Classic Protective Order
 Assessing the need for outside experts.
– To validate your client’s actions, standards in the industry or to
create reports and/or gather information
– To attack and fend off anticipated arguments raised by other side.
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Assessing the complexity and preparing forAssessing the complexity and preparing for
the long haulthe long haul

7.  Litigation Holds
– A litigation hold is a written directive advising custodians of
certain documents and electronically-stored information (“ESI”)
to preserve potentially relevant evidence in anticipation of
future litigation.
– Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
– Once a party reasonably anticipates litigation, it must suspend
its routine document retention/destruction policy and put in
place a "litigation hold" to ensure the preservation of relevant
documents.
– Need to ascertain if your client has a document retention policy
and whether it has been followed. Has your client complied with
existing law and standards in the industry
– Attachment 2: Example Document Retention Policy
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Assessing the complexity and preparing forAssessing the complexity and preparing for
the long haulthe long haul

8. Preparing forthe discovery onslaughtPreparing forthe discovery onslaught
• Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
• Court found that defendant failed in is duty to retain documents it
should have known is relevant in a potential action, is reasonably
calculated to lead to the discovery of admissible evidence, or is
reasonably likely to be requested during discovery and/or is the
subject of a pending discovery request.
• G ilbe rt v. Lig am arri, 420 N. Y. S. 2d 48 4
• Appellant sought respondent to create and disclose a hand writing
sample. No provisions of article 31 extend so far as to empower the
court to order a party to take affirmative action to create and bring
into existence an otherwise nonexistent writing, document or other
thing or object on the theory that following its court-ordered
manufacture it may prove to constitute evidence material and
necessary to the prosecution of his adversary's case
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Case Management and documentCase Management and document
retention toolsretention tools
 http://www.capterra.com/legal-case-management-software
/
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10. Who is the face of the companyWho is the face of the company
• Federal 30(b)(6) Witnesses
• Federal Rule of Civil Procedure 30(b)(6) allows a
corporation or other entity to designate a witness to testify
on the organization’s behalf and requires only that the
designated witness be able to testify about information
“known or reasonably available to the organization.”
• Under FRCP 26(c). The organization may inadvertently
waive its objections to the Rule 30(b)(6) deposition notice
if it fails to make a timely motion for a protective order or
fails to meet and confer with its adversary before making
the motion.
• Warning- avoid the super witness pitfall
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 New York State Law
– Under NY law a party may designate who will appear for the
corporation at its deposition. C.P.L.R. §§ 3106(d), 3107; NYU
Ho spitals Ctr. v Co nce rt He alth Plan, 2013 N.Y. Misc. LEXIS
5927, 18 (N.Y. Sup. Ct., 2013); Prude ntialIns. Co . v Ward
Pro ducts Co rp. , 394 NYS2d 480 (N.Y. App. Div. 3d Dep’t, 1977)
– A party can still depose people who have sufficient knowledge of
facts. See White v. Tuto r Tim e , 71 A.D.3d 761, (N.Y. App. Div.
2d Dep't 2012); see Co licchio v. City o f Ne w Yo rk, 581 N.Y.S.2d
36 (N.Y. App. Div. 1st, 1992); NYUHo spitals Ctr. v Co nce rt
He alth Plan, 2013 N.Y. Misc. LEXIS 5927, 18 (N.Y. Sup. Ct.,
2013)
Who is the face of the companyWho is the face of the company

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 Cost/benefit analysis
– Is the litigation hurting your client’s business
 a. Reputation
 b. Time wasted
 c. Litigation cost
 Is there an Exit Strategy
 Proper valuation
 ADR.
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When is enough is enough is enough: Exit StrategyWhen is enough is enough is enough: Exit Strategy

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Mario D. Cometti, Esq.
Tully Rinckey PLLC
441 New Karner Road
Albany, New York
518-218-7100
mcometti@1888law4life.com
©2015
Questions?