Reviewed by Mitchell J. Katz
I recently had occasion to review a new edition of a treatise that may be of interest to members of the FCBA: Business and Commercial Litigation in Federal Courts (Robert L. Haig, ed., Thomson Reuters, 4th ed. 2017). This 14-volume set, released by Thomson Reuters and developed with the cooperation of the American Bar Association’s Section of Litigation, contains more than 17,000 pages of text by 296 principal authors, among them 27 judges. The pages set forth a step-by-step practice guide covering every aspect of a commercial case, from the investigation and an assessment that takes place at the case’s inception, through pleadings, discovery, motions, trial, appeal, and enforcement of judgment. To see the comprehensive nature of the subject matter; just review the Table of Contents.
Because the treatise contains 153 chapters (and I try to have a life outside of the practice of law), I have decided to focus my comments on a few chapters that reflect part of my business-based practice within the Northern District of New York. Each chapter is organized in outline format, which makes finding specific issues of interest easy. In addition, each chapter provides practice pointers and a checklist. All of the references are amply supported by case citations and, because the treatise focuses on commercial litigation in federal courts, the citations are not limited to those from the Second Circuit. I find this particularly useful given that, while many contracts provide for the applicability of New York law, not all do so; and having case citations from outside of New York and the Second Circuit provides guidance for further research.
Chapter 12, Removal to Federal Court
The pleadings to accomplish removal are straightforward. This chapter discusses the benefits of proceeding in federal court or state court and includes strategic considerations for making the decision. Time limits and triggers for removal are clearly highlighted. There is of course an analysis of removal based upon diversity including a discussion concerning party “alignment” issues. There is ample analysis of the “amount in controversy” requirements, including how equitable relief is addressed in determining the amount in controversy. The analysis of forum selection clauses includes a discussion concerning the contractual waiver of the right to remove. There is also a discussion concerning transfer of venue, as well as removal and remand procedures. If your practice, like mine, does not include commercial cases arising under federal statutes or class actions, you can move easily from strategic considerations to diversity and then to practice and procedure.
Chapter 17, Provisional Remedies
This chapter is interesting because it not only covers the traditional TRO and preliminary injunction remedies, but also deals with how Fed. R. Civ. P. 64 brings to federal court the state remedies for notice of pendency, attachment, garnishment, replevin and sequestration. Strategic considerations for seeking and defending against provisional remedies are discussed, and there is even a suggestion of how to organize workflow in order to properly document the application for or opposition to the relief sought on a compressed time schedule. Every element of proof required to secure an injunction is analyzed in detail and the chapter is noteworthy for the extensive case citations in support of the analysis. There is an extensive analysis of preliminary injunctions in particular areas of the law including securities, antitrust, intellectual property and arbitration. The analysis of the state law remedies is no less expansive. The author provides a very specific analysis of the various state law remedies which can be sought from the federal court pursuant to Rule 64.
Chapter 26, Discovery of Electronically Stored Information
This chapter is a must-read for those who do not spend a lot of time dealing with discovery of electronically stored information or “ESI.” Rules 16, 26, 34, 37 and 45 are discussed. The ever-problematic duty to preserve is the subject of needed emphasis. The importance of pre-litigation planning, addressing standards of reasonableness and good faith, and understanding electronic information and how to identify issues early on in the process are set forth in a fashion that is useful to the practitioner who wants to be quickly informed at a high level. There are ample citations to various resources including The Sedona Conference materials. There is a basic discussion concerning the types of electronically stored information and an offering of terms and terminology. No discussion would be complete without an analysis of the remedies for the failure to preserve electronically stored information. Many checklists are provided.
Chapter 51, Mediation
In addition to the nuts and bolts of mediation, this chapter provides “reflections of a leading neutral on mediation advocacy.” This section identifies the skills that the authors believe are useful to be a good mediation advocate. We oftentimes assume that as trial lawyers we will be good advocates in the mediation environment. This chapter does not draw such a straight line. The rules for mediation practice as provided by AAA, CPR and JAMS are all cited. There is a discussion concerning confidentiality and privilege, ethical considerations and ethical obligations of lawyer advocates. Suggestions are provided for everything from the selection of a mediator, to the preparation of mediation statements, to scheduling and client participation. In light of the Northern District of New York’s mandatory mediation program, this chapter would be one to read right after the set is unpacked.
Admittedly I am a bit of a nerd when it comes to practice and procedure. Not only does this treatise allow you to quickly find detailed analysis on a particular topic, it provides you the ability to “wander” around to find other useful information, practice pointers and ideas. If you have a practice that includes regular visits to the federal courts, this treatise is worth having in your library. The price is $1,811.00. It is also available on Westlaw.
MITCHELL J. KATZ is President of the NDNY-FCBA, Chair of the Commercial and Federal Litigation Section of the New York State Bar Association, a Member of the New York State Unified Court System’s Commercial Division Advisory Council, and the Manager of the Litigation Practice Group at Menter, Rudin & Trivelpiece, P.C.