Winning Cases in Federal Court (Day Two) June 28, 2012 6:00PM to 9:00PM

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Information Regarding CLE Credits and Certification Winning Cases in Federal Court (Day Two) June 28, 2012 6:00PM to 9:00PM

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

Winning Cases in Federal Court June 28, 2012 6:00 PM – 9:00 PM

AGENDA

Program Chairs: Hon. Lewis Kaplan, S.D.N.Y Joel Silverstein, Stern & Kilcullen, LLC

Faculty: Scott Berman, Friedman, Kaplan, Seiler & Adelman LLP Susan Buckley, Cahill, Gordon & Reindel LLP Charles Cohen, Hughes Hubbard & Reed Gregg Kanter, Gregg H. Kanter Law Office, LLC Veronica Rendon, Arnold & Porter

6:00 p.m. Introductions, Joel Silverstein

6:05 p.m. Overview of Discovery Methods and Motions, Gregg Kanter

6:45 p.m. Non-Party Discovery, Scott Berman

7:10 p.m. Electronic Discovery, Charles Cohen

7:45 p.m. Break

7:55 p.m. Taking and Defending Depositions, Susan Buckley

8:25 p.m. Experts, Veronica Rendon

9:00 p.m. Distribution of Certificates

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Winning Cases in Federal Court Day Two

Table of Contents

Section Overview of Discovery Methods and Motions 1

Non Party Discovery in Federal Litigation 2

Electronic Discovery 3

Taking and Defending Depositions 4

Experts 5

Lewis A. Kaplan U.S. Southern District, New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street, Room 1310 New York, NY 10007-1312 (212) 805-0216 Status: Active

Judicial Experience:

• United States District Judge., U.S. Southern District, New York

Other Professional Experience:

• Paul, Weiss, Rifkind, Wharton & Garrison to 1994 • Law Clerk, Hon. Edward M. McEntee ,US Court of Appeals for the First Circuit to 1970

Education:

• J.D., Harvard Law School • B.A.(Political Science), University of Rochester

Admission to the Bar:

•

Publications/Lectures:

• Some Reflections on Corporate Criminal Responsibility, 7 The Antitrust Source 1, 2007 • Should We Reconsider Corporate Criminal Liability?, 12 NY Litigator No. 1, 3, 2007 • Experts in the Courthouse: Problems and Opportunities, 2006 Colum. Bus. L. Rev. 247, 2006 Federal Sentencing: Where Do We Go From Here?, 223(25) New York Law Journal, 4:4, Feb. 7, 2005 • Copyright and the Internet, 22 Temple Env. L. & Tech. J. 1, 2003 • Copyright in the Digital Age, 49 J. Copyright Soc. of the USA 1, 2001 • Resolving Tensions Between Copyright and the Internet, in Symposium, Beyond Napster: Debating the Future of Copyright on the Internet, 50 Am. Univ. L.Rev. 414, 2001 • Litigation, Privacy and the Electronic Age, 4 Yale Symp. L. & Tech. 1, 2001 • Defending 'Fraud by Hindsight' Cases, American Banker, 1992 • Implied Causes of Action, Litigation, Summer 1982 Potential Competition and Section 7 of the Clayton Act, 25 Antitrust Bull. 297, 1980 International Discovery in Antitrust Litigation in Antitrust Counseling and Litigation Techniques, J. O. von Kalinowski ed., 1996

Professional Civic Activities/Honors/Awards:

• Judicial Fellow, American College of Trial Lawyers • Judicial Liaison, ABA Section of Antitrust Law • NY State Bar Association • Association of the Bar of the City of New York • American Law Institute Learned Hand Medal for excellence in federal jurisprudence, Federal Bar Council Stanley H. Fuld Award for outstanding contributions to commercial and litigation, NY State Bar Assn • Graduated from the University of Rochester with high honors in Political Science • Graduated cum laude from Harvard Law School.

JOEL M. SILVERSTEIN Partner Stern & Kilcullen

Mr. Silverstein received a B.A. from Columbia College in 1976 and a J.D. degree from the University of Pennsylvania Law School in 1980. Having practiced in New York at firms including White & Case and Weil, Gotshal & Manges, he has for the last thirteen years been a member of the Roseland, New Jersey law firm of Stern & Kilcullen, where his practice focuses on a wide variety civil litigation before federal district and appellate courts, including class actions brought under the federal Securities laws and patent, antitrust, bankruptcy, commercial, and constitutional litigation. Mr. Silverstein has been a member of the Federal Courts Committee of the New York County Lawyers’ Association since 1988. He is a member of the Association’s CLE Institute Advisory Board and has lectured on federal civil procedure at CLE programs sponsored by the Federal Courts Committee. He co-chaired this CLE program in 2002 along with the Hon. Shira Scheindlin (USDJ SDNY), and in 2003 along with the Hon. John Gleeson (USDJ EDNY) and the Hon. Steven M. Gold (EDNY USMJ). From 1995 through 2000, Mr. Silverstein chaired a Subcommittee of the Association’s Federal Courts Committee that conducted nationwide surveys of federal judges and clerks concerning alternative procedures used by some courts and judges to process dispositive motions, assessed the legality and efficacy of such procedures, and prepared a detailed report of its conclusions, which was published by West at 190 F.R.D.222, and won the Association’s 1999 Eppler Award.

GREGG H. KANTER

Gregg Kanter is a commercial litigator practicing in New York City and Philadelphia. Mr. Kanter has litigated a wide variety of commercial matters, including such high profile cases as the class actions concerning Holocaust‐era insurance policies, the World Trade Center net lessees' property damage claim arising from 9/11, and Madoff "clawback" claims.

Mr. Kanter was a Law Clerk for the Gregg H. Kanter Law Office LLC Honorable Henry A. Politz of the United 2222 Pine Street, Philadelphia, PA 19103 (917) 494‐5317 / [email protected] States Court of Appeals for the Fifth Circuit. www.kanter‐law.com He has worked in Philadelphia for Sprague & Sprague and in New York for Flemming Selected Publications: Zulack Williamson Zauderer. Author, The Southern District’s New Pilot Project for Complex Civil Litigation, 7 N.Y. County Law., Dec. 2011, at Professional Activities 1.

Member, Judicial Improvements Committee Advisory Author, Judicial Review of Antitakeover Devices Employed Group for the Pilot Project Regarding Case in the Noncoercive Tender Offer Context: Making Sense of Management Techniques for Complex Civil Cases in the the Unocal Test, 138 U. Pa. L. Rev. 225 (1989). Southern District of New York. Author, SameSex Harassment Cases: A WakeUp Call for Chair, Federal Courts Committee of the New York Employers, 3 Emp. L. Strategist 5 (June 1995). County Lawyers' Association (2009‐present; Vice‐ Author, A Recommendation for Uniformity of Some Chair, 2008‐09; Secretary, 2002‐09). CM/ECF Protocols (2006)

Chair, Luncheon Honoring the Federal Courts in New Contributing Author, THE UNITED STATES DISTRICT COURT York City (2006). FOR THE SDOUTHERN ISTRICT OF NEW YORK: A RETROSPECTIVE (2000‐2010) (2012) Chair, ECF Subcommittee of Federal Courts Committee of the New York County Lawyers' Association (2005‐09). Contributing Author, Comments on the Adopted Revisions to the Local Rules of the United States District Courts for Member, Ethics Reform Task Force of the New York the Southern and Eastern Districts of New York (2011). County Lawyers' Association (2005‐07). Contributing Author, Comments on the Report of the Member, House of Delegates of the New York State Bar New York State Bar Association's Special Committee on Association (2009‐11; Alternate, 2008‐09). Standards for Pleading in Federal Litigation (2010). Counsel, Special Committee on Age Discrimination in Contributing Author, Comments on the Proposals for the the Profession of the New York State Bar Association 2010 Duke Conference Regarding the Federal Rules of (2006‐08). Civil Procedure by the Federal Courts Committee of the Association of the Bar of the City of New York (2010). Participant, 13th Annual Sedona Conference on Complex Litigation: The Future of Civil Litigation 2 Contributing Author, Report on the New York State Bar (2011). Association Commercial and Litigation Section Report: The Continuing Surge in Immigration Appeals in the Second Education Circuit: The Past, the Present and the Future (2010).

Contributing Author, Response to the Request by the University of Pennsylvania Law School Southern District of New York for Comments on its Policy J.D., cum laude, 1990 Regarding Cell Phones, Laptops, PDAs, and Other Editor, University of Pennsylvania Law Review Electronic Devices in the Courthouse (2009).

University of Pennsylvania Contributing Author, Report and Recommendations on B.A. in Philosophy, 1985 Mandatory Retirement Practices in the Profession (2007).

UNITED STATES DISTRICT COURT for the <______> DISTRICT OF <______>

, ) ) Plaintiff(s) ) ) v. ) ) Civil Action No. , ) ) Defendant(s) ) )

REPORT OF THE PARTIES’ PLANNING MEETING

1. The following persons participated in a Rule 26(f) conference on by :

, representing the , representing the

2. Initial Disclosures. The parties [have completed] [will complete by ] the initial disclosures required by Rule 26(a)(1).

3. Discovery Plan. The parties propose this discovery plan:

(a) Discovery will be needed on these subjects: . (b) (c) (d) (e) (f) (g) (h)

4. Other Items:

(a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

Date:

______

Date:

______

Case 1:11-mc-00388-LAP Document 1 Filed 11/01/11 Page 1 of 39 REPORT OF THE JUDICIAL IMPROVEMENTS COMMITTEE

PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES

October 2011

TABLE OF CONTENTS

Page

Preface ...... ii

JIC Advisory Committee Roster ...... iii

Subcommittee Rosters ...... iv

Initial Pretrial Conference Procedures ...... 1

Discovery Procedures ...... 4

Motion Procedures ...... 8

Final Pretrial Conference Procedures ...... 10

Exhibits:

A. Initial Pretrial Conference Checklist

B. Joint Electronic Discovery Submission

C. Order of Reference to a Magistrate Judge

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PREFACE

Beginning in early 2011, the Judicial Improvements Committee of the Southern

District of New York (“JIC”),1 chaired by Judge Shira A. Scheindlin, began to consider a pilot

project to improve the quality of judicial case management. The impetus for this project was

the “Duke Conference” sponsored by the Judicial Conference Advisory Committee on Civil

Rules. Judge John G. Koeltl, a member of the Advisory Committee, was Chair of the Planning

Committee for the Duke Conference. The JIC decided to focus on complex cases and to develop procedures that would be implemented by the judges of the Court for an eighteen- month trial period. To assist in this effort the Chair of the JIC appointed an Advisory

Committee of experienced attorneys, representing a broad diversity of the bar to develop proposals. The Advisory Committee, joined by members of the JIC, formed four subcommittees to consider and recommend best practices for the management of complex civil cases. Each of the four subcommittees submitted a report to the JIC which was adopted in substance by the JIC. The JIC then presented its proposal to the Board of Judges. On

September 28, the Board of Judges approved the proposal, albeit with some suggestions for implementing the final version of the pilot project. The following report is the pilot project that the Court has adopted. It will take effect on November 1, 2011. The Court is deeply grateful to all of the JIC Members and Advisory Committee members who worked so hard to bring this project to fruition.

1 The members of the Judicial Improvements Committee include: Judge Denise Cote, Judge Thomas Griesa, Judge Kenneth Karas, Judge John Koeltl, Judge Victor Marrero, Judge Shira Scheindlin, Judge Sidney Stein, Judge Robert Sweet, Judge James Cott, Judge Theodore Katz, Judge Henry Pitman and Judge Lisa Smith.

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JIC ADVISORY COMMITTEE ROSTER

Samuel F. Abernethy Menaker & Herrmann LLP

James Batson Liddle & Robinson, LLP

Steven Bennett Jones Day

James Bernard Stroock & Stroock & Lavan LLP

John Boston Legal Aid Society

Vince (Vernon) Broderick Weil, Gotshal & Manges LLP

Susanna Buergel Paul, Weiss, Rifkind, Wharton & Garrison LLP

Dale Cendali Kirkland & Ellis LLP

Melanie Cyganowski Otterbourg, Steindler, Houston & Rosen, P.C.

Maura Grossman Wachtell, Lipton, Rosen & Katz

Gregory Joseph Gregory P. Joseph Law Offices LLC

Gregg Kanter Sprague & Sprague

Marilyn Kunstler Boies, Schiller & Flexner LLP

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Mei Lin Kwan-Gett Willkie Farr & Gallagher LLP

Sara Moss Estee Lauder

Tai Park Park & Jensen LLP

Jon Pines Deputy Chief, General Litigation Division of NY City Law Department

Debra Raskin Vladeck, Waldman, Elias & Engelhard, P.C.

Theodore O. Rogers, Jr. Sullivan & Cromwell LLP

Scott Rosenberg Legal Aid Society, General Counsel

Susan Saltzstein Skadden Arps Slate Meagher & Flom

Paul Saunders Cravath, Swaine & Moore LLP

Andrew Schilling Chief of the Civil Division, US Attorneys Office, SDNY

Lorna Schofield Debevoise & Plimpton LLP

Amy Schulman Pfizer Corporation

Penny Shane Sullivan & Cromwell LLP

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Kent Stauffer Executive Deputy Attorney General Guy Miller Struve Davis Polk & Wardwell LLP

Steve Susman Susman Godfrey LLP

Ariana Tadler Milberg, LLP

Mary Kay Vyskocil Simpson, Thacher & Bartlett LLP

Peter Wang Foley & Lardner LLP

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SUBCOMMITTEE ROSTERS

Initial Pretrial Case Management Subcommittee

Co-Chairs:

Amy Schulman, Paul Saunders

Committee Members:

Judge John Koeltl, Judge Sidney Stein, Judge Henry Pitman, John Boston, Marilyn Kunstler, Sara Moss, Andrew Schilling, Penny Shane, Kent Stauffer, Sam Abernethy

Also participating:

Judge Shira Scheindlin

Discovery Subcommittee

Co-Chairs:

Greg Joseph, Debra Raskin

Committee Members:

Judge Thomas Griesa, Judge James Cott, Judge Lisa Smith, Jim Batson, Steven Bennett, Mei Lin Kwan-Gett, Maura Grossman, Jon Pines, Theodore Rogers, Scott Rosenberg, Kent Stauffer, Ariana Tadler

Also participating:

Judge Shira Scheindlin

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Motions Subcommittee

Co Chairs:

Susan Saltzstein, James Bernard

Committee Members:

Judge Victor Marrero, Judge Robert Sweet, Gregg Kanter, Tai Park, Guy Struve, Dale Cendali, Susanna Buergel, Melanie Cyganowski, Lorna Schofield

Also participating:

Judge Shira Scheindlin

Final Pretrial Conference Subcommittee

Co-Chairs:

Steve Susman, Mary Kay Vyskocil

Committee Members:

Judge Denise Cote, Judge Kenneth Karas, Judge Theodore Katz, Vernon Broderick, Peter Wang, Guy Struve, Andrew Schilling, Paul Saunders

Also participating:

Judge Shira Scheindlin

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I. Initial Pretrial Case Management Procedures

A. Initial Report of Parties before Pretrial Conference. No later than 7 days before the initial pretrial conference, the parties shall file an Initial Report that includes the following:

1. The parties’ positions on the applicable topics of the “Initial Pretrial Conference Checklist” (see Exhibit A, annexed hereto) including whether initial disclosures pursuant to Rule 26(a)(1) should be made in whole or in part and whether there is some readily identifiable document or category of documents that should be produced immediately in lieu of initial disclosures.

2. The parties’ proposed schedule for fact and expert discovery including:

a. Any recommendations for limiting the production of documents, including electronically stored information.

b. .Any recommendations for limiting depositions, whether by numbers or days of depositions,2 and by the elimination of expert depositions.

c. A protocol and schedule for electronic discovery, including a brief description of any disputes regarding the scope of electronic discovery.

d. Whether the parties recommend that expert discovery precede or follow any summary judgment practice.

e. Whether the parties agree to allow depositions preceding trial of trial witnesses not already deposed.

3. Whether the parties propose to engage in settlement discussions or mediation and, if so, when would be the best time to do so. The parties should also identify what discovery should precede such discussions.

B. Pretrial Conference Procedures. The Court shall make its best effort to hold an in-person, initial pretrial conference within 45 days of service on any defendant of the complaint. If the Government is a defendant, the Court shall make its best effort to schedule the initial conference within 60 days of service. If a motion to dismiss is pending, the Court may consider postponing the initial pretrial conference until the motion is decided.

2 Note: In some complex cases the parties have limited depositions by agreeing on a maximum number of days a party may depose witnesses. The party may use those days to take two half-day or one full-day deposition per witness.

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1. Lead counsel for each party must attend.

2. The Court should address the contents of the Initial Report and the applicable topics contained in the “Initial Pretrial Conference Checklist” (see attached Exhibit A) with the parties.

3. The parties shall provide the Court with a concise overview of the essential issues in the case and the importance of discovery in resolving those issues so that the Court can make a proportionality assessment and limit the scope of discovery as it deems appropriate. The Court may also wish to consider the possibility of phased or staged discovery.

4. The Court should consider setting a deadline for any amendments to the pleadings and joinder of additional parties.

5. The Court should set a schedule for the completion of fact discovery, the filing of the Joint Preliminary Trial Report, the Case Management Conference (see Final Pretrial Conference Procedures), and the exchange of expert reports. If appropriate, the Court should also consider setting dates for the filing of dispositive motions and the filing of the Joint Final Trial Report.

6. If appropriate, the Court should set a trial-ready date or a trial date contingent on the resolution of dispositive motions.

7. If appropriate, the Court should schedule any motion for class certification and associated discovery.

8. The Court should consider setting a maximum limit for any adjournment requests, both as to length and number, whether or not the parties jointly request an adjournment.

9. If the parties agree, the Court should confirm that prior to trial the parties will be permitted to depose any trial witnesses who were not deposed prior to the filing of the Joint Final Pretrial Report. If the parties cannot agree on this procedure, the Court should consider whether to issue such an order.

10. The District Judge shall advise the parties if it will be referring the case to a Magistrate Judge and, if so, for what purposes. If the District Judge makes such a referral for the purpose of pretrial supervision (as opposed to settlement or the disposition of dispositive motions), the District Judge and the Magistrate Judge are encouraged to communicate and coordinate regarding the pretrial progress of the case.

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11. The Court shall determine whether and when additional pretrial conferences should be held to address the issues raised in items 4 through 8 above.

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II. Discovery Procedures

A. Stay of Certain Discovery upon Service of Dispositive Motion. Unless the Court orders otherwise, following service of a motion to dismiss pursuant to Rule 12(b)(6) or 12(c) (if made immediately after the filing of an answer) of the Federal Rules of Civil Procedure, discovery of documents, electronically stored information and tangible things may proceed pursuant to Rule 34 but all other discovery with respect to any claim that is the subject of the motion is stayed pending the Court’s decision on the motion.

B. Discovery Disputes Not Involving Assertion of Privilege or Work Product. Unless the Court determines otherwise, any discovery dispute — other than a dispute arising in the course of a deposition or involving invocation of a privilege or work product protection — will be submitted to the Court by letter as follows:

1. The movant will submit to the Court, in a manner permitted by the Judge’s Individual Practices, and to opposing counsel by hand delivery, fax or email, a letter of not more than 3 single-spaced pages setting forth its position and certifying that the movant has in good faith conferred or attempted to confer with the party or person failing to make discovery in an effort to obtain it without court action. All disputes that the movant intends to raise at that time must be submitted in a single letter.

2. The responding party or person may submit a responsive letter of no more than 3 single-spaced pages within 3 business days with a copy to opposing counsel.

3. If the Court permits a reply, it should not exceed 2 single-spaced pages and should be submitted within 2 business days of the responding letter.

4. The Court will make its best effort to render a decision no later than fourteen days from its receipt of the final letter. The Court may resolve the dispute prior to its receipt of the responsive letter if it has otherwise provided the person or party an opportunity to be heard.

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C. In Camera Sampling of Assertions of Privilege. A party or person who raises a question as to the assertion of a privilege or work product protection with respect to documents (including electronically stored information) may request a ruling from the Court as follows:

1. The requesting party or person will submit to the Court, in a manner permitted by the Judge’s Individual Practices, and to opposing counsel by hand delivery, fax or email, a letter of not more than 3 single- spaced pages (a) setting forth its position, (b) certifying that it has in good faith conferred with the opposing party or person in an effort to resolve the issues without court action, and (c) indicating whether there is consent to in camera inspection.

2. If the requestor is the party or person invoking privilege or work product protection, it may attach to its letter to the Court no more than 5 representative documents that are the subject of its request. The documents are to be attached only to the copy of the letter directed to the Court, for in camera review, and not to the copy of the letter directed to the opposing party or person.

3. Any opposing party or person may submit a responsive letter of no more than 3 single-spaced pages within 3 business days with a copy to opposing counsel.

4. If the Court permits a reply, it should not exceed 2 single-spaced pages and should be submitted within 2 business days of the responding letter.

5. Unless the Court requires a more extensive submission, within fourteen days from its receipt of the responsive letter or, if later, its receipt of the documents, the Court will make its best effort to determine whether the submitted documents must be produced. The Court may issue its decision prior to its receipt of the responsive letter if it has otherwise provided any opposing party or person an opportunity to be heard.

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D. Documents Presumptively Not to Be Logged on Privilege Log. The following documents presumptively need not be included on a privilege log:

1. Communications exclusively between a party and its trial counsel.

2. .Work product created by trial counsel, or by an agent of trial counsel other than a party, after commencement of the action.3

3. Internal communications within (a) a law firm, (b) a legal assistance organization, (c) a governmental law office or (d) a legal department of a corporation or of another organization.

4. .In a patent infringement action, documents authored by trial counsel for an alleged infringer even if the infringer is relying on the opinion of other counsel to defend a claim of willful infringement.4

E. Privilege Log Descriptions of Email Threads. For purposes of creation of a privilege log, a party need include only one entry on the log to identify withheld emails that constitute an uninterrupted dialogue between or among individuals; provided, however, that disclosure must be made that the e-mails are part of an uninterrupted dialogue. Moreover, the beginning and ending dates and times (as noted on the emails) of the dialogue and the number of emails within the dialogue must be disclosed, in addition to other requisite privilege log disclosure, including the names of all of the recipients of the communications.

3 See D. Conn. Local Rule 26(e) (“This rule requires preparation of a privilege log with respect to all documents *** except the following: *** the work product material created after commencement of the action”). D. Colo. Local Rule 26.1(g)(3)(c), S.D. Fla. Local Rules Gen Rule 26.1(g)(3)(C), E.D. Okla. Local Rule 26.2(b), and N.D. Okla. Local Rule 26.2(b) are substantively identical D. Conn. Local Rule 26(e). Note that this proposal is more limited than these local rules because it does not exempt from logging documents created by the client at counsel’s suggestion, to avoid abuse.

4 See In re Seagate Tech., 497 F.3d 1360 (Fed. Cir. 2007) (en banc) (reliance on opinion of counsel does not waive the privilege or work product protection of trial counsel on the same subject matter); N.D. Cal. Local Patent Rule 3-7(c) (“Serve a privilege log identifying any other documents, except those authored by counsel acting solely as trial counsel, relating to the subject matter of the advice which the party is withholding on the grounds of attorney-client privilege or work product protection.”). D.N.J. Local Patent Rule 3.8(c), E.D. Mo. Local Patent Rule 3-9(c), W.D. Wash. Local Patent Rule 140, S.D. Tex. Patent Rule 3-8, E.D. Tex. L. Patent Rule 3-7(b), D. Idaho L. Patent Rule 3.8, S.D. Cal. Local Patent Rule 3.8(b) and other local patent rules are substantively identical to N.D. Cal. Local Patent Rule 3-7(c).

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F. Requests for Admission. Unless otherwise stipulated or ordered by the Court, a party may serve on any other party no more than 50 requests for admission pursuant to Federal Rule of Civil Procedure 36(a)(1)(A); no such request for admission may exceed 25 words in length; except that no limit is imposed on requests for admission made pursuant to Rule 36(a)(1)(B) relating to the genuineness of any described documents.

G. Subpoenaed Material. Unless the Court orders otherwise, whenever documents, electronically stored information, or tangible things are obtained in response to a subpoena issued pursuant to Rule 45 of the Federal Rules of Civil Procedure, the party responsible for issuing and serving the subpoena shall promptly produce them to, or make them available for inspection and copying by, all parties to the action.

H. Joint Electronic Discovery Submission. A joint electronic discovery submission and proposed Order is annexed as Exhibit B. Among other things, it includes a checklist of electronic discovery issues to be addressed at the Rule 26(f) conference.

I. Revised Order of Reference to Magistrate Judge. A revised form of Order of Reference to Magistrate Judge is annexed as Exhibit C. Among other things, it provides that in the case of urgent discovery disputes — e.g., in mid-deposition — litigants may approach the assigned Magistrate Judge when the District Judge is unavailable.

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Motion Procedures

A. Pre-Motion Conferences.

1. Pre-motion conferences should be held for all motions except motions for reconsideration, motions for a new trial, and motions in limine. For discovery disputes, see the procedures set forth at Part II. B, supra.

2. A party intending to file a motion governed by the preceding paragraph (other than Rule 12(b) motions) must request by letter no longer than 3 single-spaced pages, a pre-motion conference in advance of filing any such motion. The moving party’s letter shall be submitted at least 7 business days prior to a proposed or scheduled conference date, or at any time if no such date has been proposed or scheduled. Within 3 business days of receipt of the letter, each opposing party may submit a written response of no more than 3 single-spaced pages in length. No further letters will be accepted by the Court. The Court will, as soon as possible thereafter, hold the pre-motion conference.

3. The filing of a pre-motion letter shall automatically stay the time by which the motion must be made. In the event the law imposes a filing deadline, the requirement of a pre-motion letter and conference will not apply, unless the Court extends the deadline for filing a motion.

4. Motions pursuant to Rule 12(b) are subject to a different procedure. The Court may consider one of the following options: (a) Not requiring a pre-motion conference; (b) requiring the parties to exchange letters (with or without a copy to the court) prior to filing a motion to dismiss, addressing any deficiencies in the complaint, in the hope that such deficiencies might be cured by the filing of an amended complaint; or (c) holding a conference after the motion is made at which the plaintiff will be given an opportunity to either amend the complaint or oppose the motion. If plaintiff does not choose to amend, the plaintiff shall be given no further opportunity to amend the complaint to address the issues raised by the pending motion. In the event there is no amendment, the Court will determine whether any discovery shall proceed during the pendency of the motion. The time for opposing the Rule 12(b) motion will be stayed until the conference, at which time the Court will schedule the further briefing of the motion.

B. Page Length for Motions. No memorandum of law in support of or in opposition to a motion may exceed 25 pages (double-spaced). Any memorandum in excess of 10 double-spaced pages shall also include a table of contents and table of authorities. Reply memoranda may not exceed 10 pages.

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Any party may request additional pages by seeking leave of the Court after having sought the consent of the adverse party or parties.

C. Oral Argument. Oral arguments should be held where practicable and in the Court’s view useful, on all substantive motions, unless the parties agree otherwise. Five calendar days in advance of oral argument, the Court should consider notifying the parties of those issues of particular concern.

D. 56.1 Statements (Statement of Material Fact). At the request of the parties, and if approved by the Court, no Local Rule 56.1 Statement shall be filed in connection with motions made pursuant to Rule 56 of the Federal Rules of Civil Procedure. If the Court requires that the parties file Rule 56.1 statements, such statements shall not exceed 20 pages per party.

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IV. Final Pretrial Conference Procedures

A. Joint Preliminary Trial Report on Close of Fact Discovery. Within 14 days after the completion of fact discovery, the parties shall file a Joint Preliminary Trial Report, unless the Court concludes that such a report is not necessary in a particular case, which shall include the following:

1. The full caption of the action.

2. The name, address, telephone number, fax number and email address of each principal member of the trial team, and an identification of each party’s lead trial counsel.

3. A brief statement identifying the basis for subject matter jurisdiction, and, if that jurisdiction is disputed, the reasons therefore.

4. A list of each claim and defense that will be tried and a list of any claims and defenses asserted in the pleadings that are not to be tried.

5. An identification of the governing law for each claim and defense that will be tried and a brief description of any dispute regarding choice of law.

6. The number of days currently estimated for trial and whether the case is to be tried with or without a jury.

7. A statement indicating whether all parties have consented to trial by a magistrate judge, without identifying which parties do or do not consent.

8. A brief description of any summary judgment motion a party intends to file, including a statement identifying whether expert testimony will be offered in support of the motion.

B. Case Management Conference Procedure. Within 14 days of the filing of the Joint Preliminary Trial Report, the Court should make its best effort to hold a Case Management Conference to discuss the contents of the Joint Preliminary Trial Report and to finalize the schedule for the remainder of the litigation.

1. Lead trial counsel for each party must attend.

2. The parties should be prepared to discuss the substance of any summary judgment motion any party intends to file. During the

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conference, the Court will determine whether any existing schedule should be modified, including whether the period for summary judgment motions will precede or follow expert disclosures and discovery.

3. If it has not already done so, the Court should set a schedule for expert disclosures and discovery, the briefing of any summary judgment motions, the briefing of any Daubert motions, the date for the filing of the Joint Final Trial Report and a firm trial date.

a. In the event summary judgment motions will be filed, the Court should consider providing the parties with its best estimate of the date by which it expects to render a decision on the motions and should advise the parties whether there will be a further opportunity for settlement discussions or mediation following the decision. The date that the Court selects during the Case Management Conference for the filing of the Joint Final Trial Report shall be no earlier than 28 days following the Court’s decision on the summary judgment motions. Similarly, the firm trial date set by the Court at the Case Management Conference shall be no earlier than 8 weeks following the Court’s decision on summary judgment motions.

4. The Court shall encourage (and, in appropriate cases, may order) the parties to participate in settlement discussions or mediation before a forum and by a date chosen by the Court based on its consultations with the parties during the conference. Such settlement discussions or mediation efforts shall not stay the schedule for the completion of the litigation.

C. Joint Final Trial Report. On the date set at the Case Management Conference, but in any event not later than 28 days preceding the date set for the commencement of the trial, the parties shall file a Joint Final Trial Report, unless the Court concludes that such a report is not necessary in a particular case, which shall include the following:

1. In the event that there has been a ruling on summary judgment motions, a list of any claims and defenses from the Joint Preliminary Trial Report that the parties had intended to try but that they will no longer try.

2. A list by each party of its trial witnesses that it, in good faith, presently expects to present. The list shall indicate whether the

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witness will testify in person or by deposition, and the general subject matter areas of the witness’s testimony. In the event that any such witness has not been deposed, and provided the Court has previously approved (see Initial Pretrial Case Management Procedures at 2 ¶ 9), the witness will be made available for deposition before the commencement of trial. The parties will also provide an agreement as to how and when they will give notice to each other of the order of their trial witnesses.

3. A list by each party of exhibits that it, in good faith, presently expects to offer in its case in chief, together with any specific objections thereto other than on grounds of relevancy. Any objection not included on this list will be deemed waived, other than for good cause shown. Prior to filing the Joint Final Trial Report the parties will meet and confer in order to eliminate or narrow disputes about the admissibility of exhibits, to agree upon exhibits that can be utilized during opening statements at the trial, and to facilitate the filing of any in limine motions.

4. In the case of bench trials, the parties’ recommendation on whether the direct testimony of fact and expert witnesses who testify in person at trial will be submitted by affidavit to the Court in advance of trial.

5. The parties’ recommendation on the time limits for the length of the trial, and, if appropriate, the division of time between or among the parties and the protocol for tracking the time.

6. All stipulations or statements of fact or law on which the parties have agreed and which will be offered at trial shall be appended to the Joint Final Trial Report as exhibits.

7. An agreed schedule by which the parties will exchange deposition designations and counter-designations, notify each other of objections to such designations, consult with each other regarding those objections, and notify the Court of any remaining disputes. In any event, the parties must notify the Court of any remaining dispute no later than 48 hours before the deposition testimony is offered at trial.

8. An agreed schedule by which the parties will exchange all demonstratives not otherwise listed in Paragraph C.3 that the parties intend to use at trial during opening statements or otherwise, notify each other of any objections thereto, consult

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with each other regarding those objections and notify the Court of any remaining disputes.

9. The parties’ recommendation on the number of jurors and any agreement on whether a verdict can be rendered by fewer than all jurors.

10. A brief report on whether the outcome of any settlement discussions or mediation ordered at the Case Management Conference impacts any of the claims or issues remaining to be tried.

11. All other matters that the Court may have ordered at the Case Management Conference or that the parties believe are important to the efficient conduct of the trial, such as bifurcation or sequencing of issues to be tried, or use of interim summations, etc.

D. Filings to Accompany Joint Final Trial Report. The Joint Final Trial Report shall be accompanied by the following documents:

1. In all bench trials, unless directed otherwise at the Case Management Conference, each party shall submit a trial memorandum.

2. Any motions in limine. An in limine motion does not include a motion for summary judgment or a Daubert motion, which must be filed pursuant to the schedule fixed under Paragraph B.3. Opposition to in limine motions must be filed within 7 days; no reply will be allowed absent leave of court.

3. Any proposed juror questionnaire.

4. Any requested questions to be asked by the Court during the voir dire.

5. A joint description of the case to be provided to the venire during the voir dire.

6. Any proposed substantive instructions on the issues to be tried to be given by the Court to the jury prior to opening statements.

E. Final Pretrial Conference Procedures. Subsequent to the filing of the Joint Final Trial Report, and in no event less than 7 days before the commencement of trial, the Court shall hold a Final Pretrial Conference which must be attended

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by lead trial counsel for each party. At that Conference the Court shall take the following actions:

1. Determine the length of the trial and the division of time between or among the parties.

2. Determine the method by which the jury will be selected, including whether a juror questionnaire will be used and its contents.

3. Rule on any disputes among the parties identified in the Joint Final Trial Report.

4. Rule, if possible, on any motions in limine that remain outstanding.

5. Advise the parties of any substantive instructions it will give to the jury prior to opening statements.

6. Notify counsel of a schedule for submission of proposed final jury instructions.

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EXHIBIT A

INITIAL PRETRIAL CONFERENCE CHECKLIST

Proportionality assessment of “the needs of the case, amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues” (see Rule 26(b)(2)(C) (iii))

1. Possible limitations on document preservation (including electronically stored information)

2. Appropriateness of initial disclosures pursuant to Rule 26(a)(1)

a. Is there some readily identifiable document or category of documents that should be produced immediately in lieu of initial disclosures?

3. Possibility of a stay or limitation of discovery pending a dispositive motion

4. Possibility of communication/coordination between the Magistrate Judge and District Judge with respect to pretrial matters

5. Preliminary issues that are likely to arise that will require court intervention

6. Discovery issues that are envisioned and how discovery disputes will be resolved

7. Proposed discovery including:

a. limitations on types of discovery beyond those in the Rules (i.e., waiver of interrogatories, requests for admission, expert depositions)

b. limitations on scope of discovery

c. limitations on timing and sequence of discovery

d. limitations on restoration of electronically-stored information

e. agreement to allow depositions of trial witnesses named if not already deposed

f. preservation depositions

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g. foreign discovery and issues anticipated

8. Schedule (as appropriate and possibly excluding public agency cases) including:

a. date(s) for completion of discovery

b. date(s) for dispositive motions

c. date(s) for exchange for expert reports

d. date(s) for exchange of witness lists

e. date (s) for Joint Preliminary Trial Reports and Final Joint Trial Reports

f. date for Case Management Conference

9. Issues to be tried

a. ways in which issues can be narrowed to make trial more meaningful and efficient

b. whether there are certain issues as to which a mini-trial would be helpful

10. Bifurcation

11. Class certification issues

12. ADR/mediation

13. Possibility of consent to trial before a Magistrate Judge

14. Pleadings, including sufficiency and amendments, and the likelihood and timing of amendments

15. Joinder of additional parties, and the likelihood and timing of joinder of additional parties

16. Expert witnesses (including necessity or waiver of expert depositions)

17. Damages (computation issues and timing of damages discovery)

18. Final pretrial order (including possibility of waiver of order)

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19. Possible trial-ready date

20. Court logistics and mechanics (e.g., communication with the court, streamlined motion practice, pre-motion conferences, etc.)

21. The need for additional meet and confer sessions, to continue to discuss issues raised at the initial conference among counsel.

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EXHIBIT B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) , ) ) Plaintiff(s) ) ) No.: _____CV______) Joint Electronic Discovery Submission No. -against- ) ___ and [Proposed] Order ) , ) ) Defendant(s) ) )

One or more of the parties to this litigation have indicated that they believe that relevant information may exist or be stored in electronic format, and that this content is potentially responsive to current or anticipated discovery requests. This Joint Submission and [Proposed] Order (and any subsequent ones) shall be the governing document(s) by which the parties and the Court manage the electronic discovery process in this action. The parties and the Court recognize that this Joint Electronic Discovery Submission No. ___ and [Proposed] Order is based on facts and circumstances as they are currently known to each party, that the electronic discovery process is iterative, and that additions and modifications to this Submission may become necessary as more information becomes known to the parties.

(1) Brief Joint Statement Describing the Action, [e.g., “Putative securities class action pertaining to the restatement of earnings for the period May 1, 2009 to May 30, 2009”]:

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(a) Estimated amount of Plaintiff(s)’ Claims:

Less than $100,000 Between $100,000 and $999,999 Between $1,000,000 and $49,999,999 More than $50,000,000 Equitable Relief Other (if so, specify) ______

(b) Estimated amount of Defendant(s)’ Counterclaim/Cross-Claims:

Less than $100,000 Between $100,000 and $999,999 Between $1,000,000 and $49,999,999 More than $50,000,000 Equitable Relief Other (if so, specify) ______

(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.

(3) Meet and Confer. Pursuant to Fed. R. Civ. P. 26(f), counsel are required to meet and confer regarding certain matters relating to electronic discovery before the Initial Pretrial Conference (the Rule 16 Conference). Counsel hereby certify that they have met and conferred to discuss these issues.

Date(s) of parties’ meet-and-confer conference(s): ______(4) Unresolved Issues: After the meet-and-confer conference(s) taking place on the aforementioned date(s), the following issues remain outstanding and/or require court intervention: Preservation; Search and Review; Source(s) of Production; Form(s) of Production; Identification or Logging of Privileged Material; Inadvertent Production of Privileged Material; Cost Allocation; and/or Other (if so, specify) ______. To the extent specific details are needed about one or more issues in dispute, describe briefly below.

As set forth below, to date, the parties have addressed the following issues:

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(5) Preservation.

(a) The parties have discussed the obligation to preserve potentially relevant electronically stored information and agree to the following scope and methods for preservation, including but not limited to: retention of electronic data and implementation of a data preservation plan; identification of potentially relevant data; disclosure of the programs and manner in which the data is maintained; identification of computer system(s) utilized; and identification of the individual(s) responsible for data preservation, etc.

Plaintiff(s):

Defendant(s):

(b) State the extent to which the parties have disclosed or have agreed to disclose the dates, contents, and/or recipients of “litigation hold” communications.

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(c) The parties anticipate the need for judicial intervention regarding the following issues concerning the duty to preserve, the scope, or the method(s) of preserving electronically stored information:

(6) Search and Review

(a) The parties have discussed methodologies or protocols for the search and review of electronically stored information, as well as the disclosure of techniques to be used. Some of the approaches that may be considered include: the use and exchange of keyword search lists, “hit reports,” and/or responsiveness rates; concept search; machine learning, or other advanced analytical tools; limitations on the fields or file types to be searched; date restrictions; limitations on whether back-up, archival, legacy, or deleted electronically stored information will be searched; testing; sampling; etc. To the extent the parties have reached agreement as to search and review methods, provide details below.

Plaintiff(s):

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Defendant(s):

(b) The parties anticipate the need for judicial intervention regarding the following issues concerning the search and review of electronically stored information:

(7) Production

(a) Source(s) of Electronically Stored Information. The parties anticipate that discovery may occur from one or more of the following potential source(s) of electronically stored information [e.g., email, word processing documents, spreadsheets, presentations, databases, instant messages, web sites, blogs, social media, ephemeral data, etc.]:

Plaintiff(s):

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Defendant(s):

(b) Limitations on Production. The parties have discussed factors relating to the scope of production, including but not limited to: (i) number of custodians; (ii) identity of custodians; (iii) date ranges for which potentially relevant data will be drawn; (iv) locations of data; (v) timing of productions (including phased discovery or rolling productions); and (vi) electronically stored information in the custody or control of non-parties. To the extent the parties have reached agreements related to any of these factors, describe below:

Plaintiff(s):

Defendant(s):

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(1) The parties have reached the following agreements regarding the form(s) of production:

Plaintiff(s):

Defendant(s):

(2) Please specify any exceptions to the form(s) of production indicated above (e.g., word processing documents in TIFF with load files, but spreadsheets in native form):

(3) The parties anticipate the need for judicial intervention regarding the following issues concerning the form(s) of production:

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(d) Privileged Material.

(1) Identification. The parties have agreed to the following method(s) for the identification (including the logging, if any, or alternatively, the disclosure of the number of documents withheld), and the redaction of privileged documents:

(2) Inadvertent Production / Claw-Back Agreements. Pursuant to Fed R. Civ. Proc. 26(b)(5) and F.R.E. 502(e), the parties have agreed to the following concerning the inadvertent production of privileged documents (e.g. “quick-peek” agreements, on-site examinations, non- waiver agreements or orders pursuant to F.R.E. 502(d), etc.):

(3) The parties have discussed a 502(d) Order. Yes ; No

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The provisions of any such proposed Order shall be set forth in a separate document and presented to the Court for its consideration.

(e) Cost of Production. The parties have analyzed their client’s data repositories and have estimated the costs associated with the production of electronically stored information. The factors and components underlying these costs are estimated as follows:

(1) Costs:

Plaintiff(s):

Defendant(s):

(2) Cost Allocation. The parties have considered cost-shifting or cost- sharing and have reached the following agreements, if any:

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(3) Cost Savings. The parties have considered cost-saving measures, such as the use of a common electronic discovery vendor or a shared document repository, and have reached the following agreements, if any:

(f) The parties anticipate the need for judicial intervention regarding the following issues concerning the production of electronically stored information:

(8) Other Issues:

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The preceding constitutes the agreement(s) reached, and disputes existing, (if any) between the parties to certain matters concerning electronic discovery as of this date. To the extent additional agreements are reached, modifications are necessary, or disputes are identified, they will be outlined in subsequent submissions or agreements and promptly presented to the Court.

Party: By:

The next scheduled meet-and-confer conference to address electronic discovery issues, including the status of electronic discovery and any issues or disputes that have arisen since the last conference or Order, shall take place on: ______.

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The next scheduled conference with the Court for purposes of updating the Court on electronic discovery issues has been scheduled for ______. Additional conferences, or written status reports, shall be set every 3 to 4 weeks, as determined by the parties and the Court, based on the complexity of the issues at hand. An agenda should be submitted to the Court four (4) days before such conference indicating the issues to be raised by the parties. The parties may jointly seek to adjourn the conference with the Court by telephone call 48 hours in advance of a scheduled conference, if the parties agree that there are no issues requiring Court intervention.

Check this box if the parties believe that there exist a sufficient number of e-discovery issues, or the factors at issue are sufficiently complex, that such issues may be most efficiently adjudicated before a Magistrate Judge.

Additional Instructions or Orders, if any:

Dated: ______, 20___ SO ORDERED:

United Stated District Judge

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EXHIBIT C

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------x Plaintiff, : : ORDER OF REFERENCE v. : TO A MAGISTRATE : JUDGE Defendant, : : ( )( )

------x

The above entitled action is referred to the designated Magistrate Judge for the following purpose(s):

□ General Pretrial (includes scheduling, □ Consent under 28 U.S.C. §636(c) for all discovery, non –dispositive pretrial motions, purposes (including trial) and settlement) □ Specific Non-Dispositive □ Consent under 28 U.S.C. §636(c) Motion/Dispute* for limited purpose (e.g., dispositive ______motion, preliminary injunction) ______Purpose: ______

□ If referral is for discovery disputes for a □ Habeas Corpus specific period when the District Judge is unavailable, the time period of the referral: □ Referral for discovery disputes requiring □ Social Security prompt attention at any time when the District Judge is not immediately available (e.g. on trial or out of town) □ Settlement* □ Dispositive Motion (i.e., motion requiring a Report and Recommendation) Particular Motion: ______□ Inquest After Default/Damages Hearing □ All such motions: ______

*Do not check if already referred for general pretrial.

Dated ______

SO ORDERED:

United States District Judge

-30- T HE S EDONA C ONFERENCE ® W ORKING G ROUP S ERIES wgs SM THE SEDONA CONFERENCE ® COOPERATION PROCLAMATION

Dialogue Designed to Move the Law Forward in a Reasoned and Just Way

REPRINTS The Sedona Conference ® hereby expressly grants any interested party royalty-free reprint rights to this specific document.

wgs SM

The Sedona Conference ® Visit www.thesedonaconference.org The Sedona Conference ® Cooperation Proclamation July 2008 The Sedona Conference ® Cooperation Proclamation

The Sedona Conference ® launches a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “just, speedy, and inexpensive determination of every action.”

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.

With this Proclamation, The Sedona Conference ® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

Cooperation in Discovery is Consistent with Zealous Advocacy

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests - it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

Lawyers preparing cases for trial need to focus on the full cost of their efforts – temporal, monetary, and human. Indeed, all stakeholders in the system – judges, lawyers, clients, and the general public – have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge. It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by “gamesmanship” or “hiding the ball,” to no practical effect.

The effort to change the culture of discovery from adversarial conduct to cooperation is not utopian. 1 It is, instead, an exercise in economy and logic. Establishing a culture of cooperation will channel valuable advocacy skills toward interpreting the facts and arguing the appropriate application of law.

______1 Gartner RAS Core Research Note G00148170, Cost of eDiscovery Threatens to Skew Justice System, 1D# G00148170, (April 20, 2007), at http:// www.h5technologies.com/pdf/gartner0607.pdf . (While noting that “several . . . disagreed with the suggestion [to collaborate in the discovery process] . . . calling it ‘utopian’”, one of the “take-away’s” from the program identified in the Gartner Report was to “[s]trive for a collaborative environment when it comes to eDiscovery, seeking to cooperate with adversaries as effectively as possible to share the value and reduce costs.”).

1 The Sedona Conference ® Cooperation Proclamation July 2008

Cooperative Discovery is Required by the Rules of Civil Procedure

When the first uniform civil procedure rules allowing discovery were adopted in the late 1930s, “discovery” was understood as an essentially cooperative, rule-based, party-driven process, designed to exchange relevant information. The goal was to avoid gamesmanship and surprise at trial. Over time, discovery has evolved into a complicated, lengthy procedure requiring tremendous expenditures of client funds, along with legal and judicial resources. These costs often overshadow efforts to resolve the matter itself. The 2006 amendments to the Federal Rules specifically focused on discovery of “electronically stored information” and emphasized early communication and cooperation in an effort to streamline information exchange, and avoid costly unproductive disputes.

Discovery rules frequently compel parties to meet and confer regarding data preservation, form of production, and assertions of privilege. Beyond this, parties wishing to litigate discovery disputes must certify their efforts to resolve their difficulties in good faith.

Courts see these rules as a mandate for counsel to act cooperatively. 2 Methods to accomplish this cooperation may include:

1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses; 2. Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information; 3. Jointly developing automated search and retrieval methodologies to cull relevant information; 4. Promoting early identification of form or forms of production; 5. Developing case-long discovery budgets based on proportionality principles; and 6. Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.

The Road to Cooperation

It is unrealistic to expect a sua sponte outbreak of pre-trial discovery cooperation. Lawyers frequently treat discovery conferences as perfunctory obligations. They may fail to recognize or act on opportunities to make discovery easier, less costly, and more productive. New lawyers may not yet have developed cooperative advocacy skills, and senior lawyers may cling to a long-held “hide the ball” mentality. Lawyers who recognize the value of resources such as ADR and special masters may nevertheless overlook their application to discovery. And, there remain obstreperous counsel with no interest in cooperation, leaving even the best- intentioned to wonder if “playing fair” is worth it.

______2 See, e.g., Board of Regents of University of Nebraska v BASF Corp. No. 4:04-CV-3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable. [citations omitted]. If counsel fail in this responsibility—willfully or not—these principles of an open discovery process are undermined, coextensively inhibiting the courts’ ability to objectively resolve their clients’ disputes and the credibility of its resolution.”).

2 The Sedona Conference ® Cooperation Proclamation July 2008

This “Cooperation Proclamation” calls for a paradigm shift for the discovery process; success will not be instant. The Sedona Conference ® views this as a three-part process to be undertaken by The Sedona Conference ® Working Group on Electronic Document Retention and Production (WG1):

Part I: Awareness - Promoting awareness of the need and advantages of cooperation, coupled with a call to action. This process has been initiated by The Sedona Conference ® Cooperation Proclamation.

Part II: Commitment - Developing a detailed understanding and full articulation of the issues and changes needed to obtain cooperative fact-finding. This will take the form of a “Case for Cooperation” which will reflect viewpoints of all legal system stakeholders. It will incorporate disciplines outside the law, aiming to understand the separate and sometimes conflicting interests and motivations of judges, mediators and arbitrators, plaintiff and defense counsel, individual and corporate clients, technical consultants and litigation support providers, and the public at large.

Part III: Tools - Developing and distributing practical “toolkits” to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency. Components will include training programs tailored to each stakeholder; a clearinghouse of practical resources, including form agreements, case management orders, discovery protocols, etc.; court-annexed e-discovery ADR with qualified counselors and mediators, available to assist parties of limited means; guides for judges faced with motions for sanctions; law school programs to train students in the technical, legal, and cooperative aspects of e-discovery; and programs to assist individuals and businesses with basic e-record management, in an effort to avoid discovery problems altogether.

Conclusion

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

3 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010

Alabama Hon. Elizabeth D. Laporte U.S. District Court for the Northern District of Hon. John L. Carroll California Retired San Francisco Birmingham Hon. Louisa S. Porter Hon. William E. Cassady U.S. District Court for the Southern District of U.S. District Court for the Southern District California of Alabama San Diego Mobile Hon. David C. Velasquez Arizona Orange County Superior Court Santa Ana Hon. Andrew D. Hurwitz Vice Chief Justice, Arizona Supreme Court Hon. Carl J. West Phoenix Los Angeles County Superior Court Los Angeles Arkansas Colorado Hon. Barry A. Bryant U.S. District Court for the Western District Hon. Morris B. Hoffman of Arkansas Colorado 2nd Judicial District Court Texarkana Denver

Hon. Jerry W. Cavaneau Hon. Craig B. Shaffer U.S. District Court for the Eastern District U.S. District Court for the District of Colorado of Arkansas Denver Little Rock District of Columbia California Hon. Francis M. Allegra Hon. Robert N. Block U.S. Court of Federal Claims U.S. District Court for the Central District Washington of California Santa Ana Hon. Herbert B. Dixon, Jr. Superior Court of the District of Columbia Hon. Susan Y. Illston Washington U.S. District Court for the Northern District of California Hon. John M. Facciola San Francisco U.S. District Court for the District of Columbia Washington 4 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Hon. Alan Kay Georgia U.S. District Court for the District of Columbia Washington Hon. Joseph C. Iannazzone State Court of Gwinnett County Chief Judge Royce C. Lamberth Lawrenceville U.S. District Court for the District of Columbia Washington Illinois

Hon. Gregory E. Mize Hon. Martin C. Ashman Retired U.S. District Court for the Northern District of Washington Illinois Chicago Florida Hon. David G. Bernthal Hon. Barry L. Garber U.S. District Court for the Central District of U.S. District Court for the Southern District of Illinois Florida Urbana Miami Hon. Geraldine Soat Brown Hon. Thomas E. Morris U.S. District Court for the Northern District of U.S. District Court for the Middle District of Illinois Florida Chicago Jacksonville Hon. Jeffrey Cole Hon. Richard A. Nielsen U.S. District Court for the Northern District of 13th Judicial Circuit Illinois Tampa Chicago

Hon. Robin S. Rosenbaum Hon. Susan E. Cox U.S. District Court for the Northern District of U.S. District Court for the Southern District of Illinois Florida Chicago Fort Lauderdale Hon. Morton Denlow Hon. Thomas B. Smith U.S. District Court for the Northern District of Ninth Judicial Circuit Illinois Orlando Chicago

5 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Chief Judge Carol A. Doyle Hon. Richard Mills U.S. Bankruptcy Court for the Northern District U.S. District Court for the Central District of of Illinois Illinois Chicago Springfield

Hon. Peter A. Flynn Hon. Nan R. Nolan Illinois Superior Court U.S. District Court for the Northern District of Chicago Illinois Chicago Hon. Allen S. Goldberg Cook County Circuit Court Hon. Sidney I. Schenkier Chicago U.S. District Court for the Northern District of Illinois Chicago Hon. John A. Gorman U.S. District Court for the Central District of Illinois Hon. Susan P. Sonderby Peoria U.S. Bankruptcy Court for the Northern District of Illinois Chicago Chief Judge James F. Holderman U.S. District Court for the Northern District of Illinois Hon. Maria Valdez Chicago U.S. District Court for the Northern District of Illinois Chicago Hon. Arlander Keys U.S. District Court for the Northern District of Illinois Indiana Chicago Hon. Kenneth H. Johnson Hon. P. Michael Mahoney Marion County Superior Court U.S. District Court for the Northern District of Indianapolis Illinois Rockford Iowa

Hon. Michael T. Mason Hon. Celeste F. Bremer U.S. District Court for the Northern District of U.S. District Court for the Southern District of Illinois Iowa Chicago Des Moines

6 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Kansas Maryland

Hon. Gerald J. Elliott Hon. Lynne A. Battaglia Johnson County District Court Maryland Court of Appeals Olathe Annapolis

Hon. J. Thomas Marten Hon. Stuart R. Berger U.S. District Court for the District of Kansas Circuit Court for Baltimore City Wichita Baltimore

Hon. James P. O’Hara Hon. Paul W. Grimm U.S. District Court for the District of Kansas U.S. District Court for the District of Maryland Kansas City Baltimore

Hon. Gerald L. Rushfelt Hon. Michael D. Mason U.S. District Court for the District of Kansas Montgomery County Circuit Court Rockville Kansas City

Hon. Albert J. Matricciani, Jr. Hon. K. Gary Sebelius Maryland Court of Special Appeals U.S. District Court for the District of Kansas Baltimore Topeka

Hon. Steven I. Platt Hon. David Waxse Retired U.S. District Court for the District of Kansas Upper Marlboro Kansas City

Massachusetts Louisiana Hon. Robert B. Collings Hon. Eldon E. Fallon U.S. District Court for the District of U.S. District Court for the Eastern District of Massachusetts Louisiana Boston New Orleans

Hon. Timothy S. Hillman Hon. Sally Shushan U.S. District Court for the District of U.S. District Court for the Eastern District of Massachusetts Louisiana Worcester New Orleans

7 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Hon. Allan van Gestel Hon. Carolyn E. Demarest Retired New York Supreme Court, Commercial Division Boston Brooklyn

Michigan Hon. Helen E. Freedman New York State Court, Appellate Division Hon. Virgina M. Morgan New York U.S. District Court for the Eastern District of Michigan Hon. Marilyn D. Go Ann Arbor U.S. District Court for the Eastern District of New York Mississippi Brooklyn

Hon. Jerry A. Davis Hon. Richard B. Lowe III U.S. District Court for the Northern District of New York Supreme Court, New York County Mississippi New York Aberdeen Hon. Frank Maas Nevada U.S. District Court for the Southern District of New York Hon. Elizabeth Gonzalez New York Nevada Eighth Judicial District Court Las Vegas Hon. Andrew J. Peck U.S. District Court for the Southern District of New Jersey New York New York Hon. Katharine S. Hayden U.S. District Court for the District of New Jersey Hon. David E. Peebles Newark U.S. District Court for the Northern District of New York Hon. John J. Hughes Syracuse Retired Trenton Hon. Shira A. Scheindlin U.S. District Court for the Southern District of New York New York New York Hon. Leonard B. Austin New York Supreme Court, Commercial Division Hon. Lisa Margaret Smith Mineola U.S. District Court for the Southern District of New York White Plains 8 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Hon. Richard J. Sullivan Hon. Richard A. Frye U.S. District Court for the Southern District of Franklin County Court of Common Pleas New York Columbus New York Hon. Thomas H. Gerken Hon. Ira B. Warshawsky Hocking County Common Pleas Court New York Supreme Court, Commercial Division Logan Mineola Hon. George J. Limbert North Carolina U.S. District Court for the Northern District of Ohio Hon. Albert Diaz Youngstown North Carolina Business Court Charlotte Hon. Michael R. Merz U.S. District Court for the Southern District of Hon. John R. Jolly, Jr. Ohio North Carolina Business Court Dayton Raleigh Hon. Kathleen McDonald O’Malley Hon. Ben F. Tennille U.S. District Court for the Northern District of North Carolina Business Court Ohio Greensboro Cleveland

Ohio Oklahoma

Hon. William H. Baughman, Jr. Hon. Robert E. Bacharach U.S. District Court for the Northern District of U.S. District Court for the Western District of Ohio Oklahoma Cleveland Oklahoma City

Hon. Sandra S. Beckwith Hon. Robin J. Cauthron U.S. District Court for the Southern District of U.S. District Court for the Western District of Ohio Oklahoma Oklahoma City Cincinnati

Hon. John P. Bessey Hon. Stephen P. Friot Franklin County Court of Common Pleas U.S. District Court for the Western District of Columbus Oklahoma Oklahoma City

9 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Oregon Tennessee

Hon. John V. Acosta Hon. Joe B. Brown U.S. District Court for the District of Oregon U.S. District Court for the Middle District of Portland Tennessee Nashville Hon. Dennis J. Hubel U.S. District Court for the District of Oregon Hon. Diane K. Vescovo Portland U.S. District Court for the Western District of Tennessee Pennsylvania Memphis

Hon. Linda K. Caracappa Texas U.S. District Court for the Eastern District of Pennsylvania Hon. Andrew W. Austin Philadelphia U.S. District Court for the Western Distict of Texas Hon. Joy Flowers Conti Austin U.S. District Court for the Western District of Pennsylvania Hon. Martin Hoffman Pittsburgh 68th Civil District Court Dallas Hon. Lisa P. Lenihan U.S. District Court for the Western District of Hon. Martin L. Lowy Pennsylvania 101st Civil District Court Pittsburgh Dallas

Hon. Christine A. Ward Hon. Nancy S. Nowak Allegheny Court of Common Pleas U.S. District Court for the Western District of Pittsburgh Texas San Antonio South Carolina Washington Hon. Clifton Newman South Carolina Circuit Court, At-Large Hon. James P. Donohue Kingstree U.S. District Court for the Western District of Washington Seattle

10 The Sedona Conference ® Cooperation Proclamation July 2008 Judicial Endorsements as of September 30, 2010 cont.

Hon. Barbara Jacobs Rothstein U.S. District Court for the Western District of Washington Seattle

Hon. Karen L. Strombom U.S. District Court for the Western District of Washington Seattle

Wisconsin

Hon. Aaron E. Goodstein U.S. District Court for the Eastern District of Wisconsin Milwaukee

11 The Sedona Conference ® Cooperation Proclamation July 2008

12 Timestamp: 1/6/2011 4:51 PM CST

(Style of Case)

PRETRIAL AGREEMENTS WITH OPPOSING COUNSEL

Here is a list of pretrial agreements to try to reach with the other side before discovery begins. These agreements will make life easier for both sides and do not advantage one side over the other. Waiting until you are in the heat of battle to try to reach these agreements, one side or the other will feel disadvantaged. Place a check mark in the “Agreed” column for all the agreements that are reached. Any modifications or additions should be noted.

Item Source of No. Description Agreed Agreement 1. As to any discovery dispute, the lead lawyers will try to resolve by phone and no one will write letters to the other, including letters attached as pdf's to emails: just e-mails and phone calls. Each side will copy all of its emails to the email group distribution list provided by the other side 2. Before depositions begin, we will try to agree on how long the trial will last and ask the Court to give us a firm trial setting and to establish the length of the trial. Whatever time is allotted will be divided equally. 3. Depositions will be taken by agreement, with both sides alternating and trying in advance to agree upon the dates for depositions, even before the deponents are identified. Each side gets 10 depositions lasting for 3 hours each. 4. At depositions, all objections to relevance, lack of foundation, non-responsiveness, speculation or to the form of the question will be reserved until trial, so there will be no reason for the defending lawyer to say anything other than to advise the client to assert a privilege or to adjourn the deposition because the questioner is improperly harassing the witness. If counsel violate this agreement, the other side can play counsel’s comments/objections to the jury 5. The parties will use the same court reporter/videographer, who agrees to provide specified services at discounted prices for the right to transcribe all depositions. Timestamp: 1/6/2011 4:51 PM CST

Item Source of No. Description Agreed Agreement 6. All papers will be served on the opposing party by e- mail. 7. Documents will be produced on a rolling basis as soon as they have been located and numbered; if copies are produced, the originals will be made available for inspection upon request. 8. If the case is in federal court, the parties will seek an order from the court, under FRE 502(d), providing: Each side must initially produce electronically stored information from the files of 5 custodians selected by the other side during an agreed period of time. Only documents which have a lawyer's name on them can be withheld from production and only if they are in fact privileged. Production does not waive any privilege and documents can be snapped back whenever the producing party recognizes they are privileged. After analyzing the initial production, each side can request electronic files from 5 other custodians. Beyond that, good cause must be demonstrated.

Whether in federal court or not, the parties will produce ESI in the native format kept by the producing party, or in a common interchange format, such as Outlook/PST, Concordance or Summation, so it can be searched by the other side. If any special software is required to conduct a search in native format and is regularly used by the producing party, it must be made available to the other side. The parties will produce a Bates numbered file listing of the file names and directory structure of what is on any CDs or DVDs exchanged. Either side may use an e-mail or an attachment to an e-mail that came from one of these previously produced disks by printing out the entire e-mail (and the attachment if they are using a file that came with an e-mail) and marking it at the deposition or trial, and either side may use application data (which was not an attachment to e-mail–so it’s stand-alone on a CD or DVD) as long as the footer on the pages or a cover sheet indicates (1) the CD or DVD from whence it came, (2) the directory or subdirectory where the file was located on the CD or DVD, and (3) the name of the file itself including the file extension. 9. If agreement cannot be reached on the form of a

- 2 - \\Kcnx2y0\c$\Documents and Settings\ssusman\My Documents\Trial Prep Materials\Pretrial Agreements (Agreement with Opposing Counsel).DOC Timestamp: 1/6/2011 4:51 PM CST

Item Source of No. Description Agreed Agreement protective order within 48 hours of the time they are exchanged, both sides will write a letter to the Court including each other’s preferred version and, without argument, ask Court to select one or the other ASAP. 10. All deposition exhibits will be numbered sequentially X-1, X-2, etc., regardless of the identity of the deponent or the side introducing the exhibit and the same numbers will be used in pretrial motions and at trial. 11. The parties will share the expense of imaging all deposition exhibits. 12. We will exchange expert witness reports that provide the disclosures required by the Federal Rules. Neither side will be entitled to discovery of communications between counsel and expert witnesses or to drafts of experts’ reports. There will be no depositions of experts unless an expert’s report is incomprehensible or incomplete, in which case the party seeking clarification is required to establish the same by motion filed with the Court 13. The production of a privileged document does not waive the privilege as to other privileged documents. Documents that the other side claims are privileged can be snapped back as soon as it is discovered they were produced without any need to show the production was inadvertent. 14. Each side has the right to select 20 documents off the other’s privilege list for submission to the court for in camera inspection. 15. We will agree to a briefing schedule and page limitations for all pretrial motions. 16. We will agree upon jury questionnaire.

- 3 - \\Kcnx2y0\c$\Documents and Settings\ssusman\My Documents\Trial Prep Materials\Pretrial Agreements (Agreement with Opposing Counsel).DOC DISCOVERY MANAGEMENT

Civil Litigation Management Manual, 2nd Edition The Judicial Conference of the United States, Washington, DC Civil Litigation Management Manual Second Edition

The Judicial Conference of the United States Committee on Court Administration and Case Management

2010

This manual is for the guidance of judges. It is not intended to be relied upon as authority, and it creates no rights or duties Chapter 3: Discovery Management

A. In General B. Specific Techniques for Managing Discovery C. Anticipating and Forestalling Discovery Problems D. Limiting Discovery 1. In general 2. Document requests 3. Depositions (who, how many, etc.) E. Handling Discovery Disputes 1. Methods for reducing the number of disputes 2. Discovery motions F. Discovery of Electronically Stored Information 1. Electronic discovery issues a. Preservation of data b. Form of production c. Archives and legacy data d. On-site inspection or sampling e. Need for expert assistance 2. Management tools for electronic discovery a. Early exchange of computer system information b. Rule 16(c) pretrial conference agenda c. Rule 26(a)(1) initial disclosures d. Proportionality e. Cost allocation f. Rule 53 special master or Rule 706 court-appointed expert

The parties may obtain discovery, by rule or court order, of “any non- privileged matter that is relevant to any party’s claim or defense,” even if not admissible at trial so long as the discovery “appears reasonably calculated to lead to the discovery of admissible evidence” (Fed. R. Civ. P. 26(b)(1)). While the federal rules limit the frequency, extent, and nature of discovery, the judge may expand or limit the amount, frequency, or duration of discovery (Fed. R. Civ. P. 26 (b)(2)) by order in a specific case and/or through local rule or standing order.

A. In General Discovery management should be guided by an awareness that you know less about the case than the lawyers. This should not deter you, however,

31 Civil Litigation Management Manual from managing discovery, based on your experience and after consultation with counsel. Consider the following general approaches as a discovery management “platform” to be created before or upon your first discussion with counsel: • advising counsel of your expectations regarding the Rule 26(f) “meet and confer” conference and the discovery plan they must submit (see Chapter 1, section B.2, supra); • arriving at an early (at least tentative) definition of the scope of discovery (subject matter, time period, geographical range, etc.) based on early identification of issues at the Rule 16 conference; • setting a discovery cutoff date as soon as the needs for discovery can be assessed, preferably at the Rule 16 conference; • evaluating the appropriateness of proposed discovery in light of the damages identified and the availability of less expensive and more efficient alternatives to conventional discovery (e.g., telephone depositions or interviews) (see Fed. R. Civ. P. 26(b)(1)); • clarifying the extent of parties’ obligations to supplement and update prior and subsequent disclosures and responses (see Fed. R. Civ. P. 26(e)); • establishing procedures for resolving discovery disputes including ensuring that the parties conferred or attempted to confer in an effort to resolve the dispute (Fed. R. Civ. P. 26(c)) (see Chapter 3, section E, infra); • using special masters or liaison counsel to help organize and oversee the entire discovery process; and • establishing guidelines for handling discovery of electronically stored information (see Chapter 3, section F, infra). You can ask counsel to review the American College of Trial Lawyers’ Code of Pretrial Conduct (2002) and Code of Trial Conduct (1994). Al- though other professional organizations publish similarly helpful guidelines, these codes expound the principles of civility and fairness on which a judge may resolve the typical discovery dispute.

32 Chapter 3: Discovery Management

For illustrative orders and forms for management of discovery, see Appendix A, Forms 2, 4, 8, 11, 13, 16, 25, and 29. For illustrative procedures, see the Manual for Complex Litigation, Fourth.31

B. Specific Techniques for Managing Discovery Discovery influences both the length and cost of litigation.32 Limiting discovery to that appropriate for the case at hand promotes efficiency and economy, enables you to avoid disputes by anticipating problems, and expedites the resolution of unavoidable disputes.33 A number of techniques can be implemented, both at the Rule 16 conference and subse- quently, to advance discovery management. Effective early management will reduce discovery problems. Various techniques for management and control are available to you and the attorneys. Many districts have local rules that impose detailed restrictions and requirements on discovery. In addition, control of discovery always involves issues of timing, such as whether particular discovery actions are likely to be productive earlier or later and in what sequence. Particular kinds of discovery may help in the early evaluation of the case (for example, early disclosure of the details of the damage claim will indicate the economic stakes of the lawsuit). Specific early discovery may also help you determine whether other discovery is needed (for example, an issue may drop out of the case or needed information may become available). Your careful sequencing of discovery may help you avoid unnecessary activity. Your success will depend on your ability to take the time to key your decisions to specific, subsequent case actions, or “next action” dates.

31. See MCL 4th, supra note 10, § 11.4. 32. See RAND CJRA Report, supra note 4, at 67. 33. Rule 26(b)(2) provides as follows: The frequency or extent of use of the discovery methods otherwise permitted under these rules . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion . . . . [emphasis added]

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Consider • encouraging counsel to use requests for admission to help define controversial issues and hence the limits of needed discovery— the judge should closely supervise this process because requests for admission, if broadly or contentiously worded, can be a waste of time; the most useful requests are narrowly drawn, factual, and neutrally worded; • calling on attorneys early to prepare and present a proposed discovery plan (including the scope of written discovery and list of depositions), agreed upon by both sides to the extent feasible; • using phased discovery, including Rule 30(b)(6) depositions, to target particular witnesses, issues, and key players for the purpose of obtaining information needed for settlement negotiations, to address issues regarding electronically stored information, or to lay a foundation for a dispositive motion, thereby deferring and possibly obviating other discovery; • requiring, pursuant to Federal Rule of Civil Procedure 26(a)(2), exchange of signed reports or statements of proposed testimony of experts in advance of their depositions; • imposing, pursuant to Federal Rules of Civil Procedure 26(b)(2), 30, 31, and 33, limits on the number of interrogatories, the scope of document requests, and the number and length of depositions (local court rules may contain or recommend such limits); • restricting the use of form interrogatories or interrogatories that include, as a preamble, a set of complex definitions that render the interrogatories burdensome and objectionable; • arranging depositions so as to avoid unnecessary travel; • requiring parties to identify all relevant, electronically stored information, distinguish data by ease and cost of accessing information, and identify all types of electronic formats being used by the parties; and • in complex cases, having attorneys report via letter or teleconference at crucial case junctures on the status of documents, depositions, and settlement prospects.34

34. See generally MCL 4th, supra note 10, § 11.42 (tips for managing complex litigation, including using phased, targeted, or sequenced discovery, or having liaison counsel or special masters manage discovery).

34 Chapter 3: Discovery Management

Requiring updates either by letter or teleconference has a number of advantages: It makes a conference unnecessary; helps you maintain open, manageable channels of communication; keeps the case moving to subsequent decision-making points; is a simple, cheap, but critical case- oversight and accountability mechanism; and keeps you informed. Be- cause of the work it imposes on counsel, however, such an updating requirement should generally be used only in complex and protracted cases.

C. Anticipating and Forestalling Discovery Problems Discovery disputes sometimes develop into satellite litigation that takes on a life of its own. Your case management should help anticipate problems that may grow into disputes and should help deal with disputes so as to contain them rather than letting them expand.35 Discovery problems can be reduced if attorneys know what you expect of them, what you regard as the limits of acceptable conduct, and how you deal with objections and other discovery disputes. It is therefore imperative for you to establish a clear practice, with which the bar can become familiar, and to indicate firmly and clearly your expectations of counsel. For examples of orders and guidelines, see Appendix A, Forms 4, 8, 16, 25, and 29. To conserve resources, some district judges routinely refer discovery disputes and other matters to magistrate judges. The judge should refrain from referring all discovery disputes to a magistrate judge; this practice wastes time because two judges must become familiar with the case. Also, handling a discovery dispute is a good way to take the pulse of a case to determine if it is on track. Some larger courts have profitably designated a magistrate judge to become an expert in the discovery of electronically stored information and to serve as an institutional resource.

35. A study of discovery practice in federal courts found that, of attorneys who reported some discovery in their case, 48% reported that they had experienced problems with discovery, and about 40% reported unnecessary discovery expenses that were the result of discovery problems. Thomas E. Willging, Donna Stienstra, John Shapard & Dean Miletich, An Empirical Study of Discovery and Disclosure Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 532 (1997); this was also published as Thomas E. Willging, John Shapard, Donna Stienstra & Dean Miletich, Discovery and Disclosure Prac- tice, Problems, and Proposals for Change: A Case-Based National Survey of Counsel in Closed Federal Civil Cases (Fed. Judicial Ctr. 1997) [hereinafter FJC Discovery Study].

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Consider • establishing ground rules for depositions if the nature of the case calls for it, such as where and how depositions are taken, who may attend, who pays for which expenses, how to comply with Rule 30(b)(6) notices, and how to handle documents, objections, claims of privilege, and instructions not to answer;36 • if it appears discovery will be contentious, allocating costs of compliance with costly discovery demands by issuing a protective order under Federal Rule of Civil Procedure 26(c), specifying who bears the cost of certain expensive discovery, or condition- ing certain discovery on the payment of expenses by the opponent (such as paying for computer runs or copying costs);37 • to the extent the local rules do not do so, establishing (or asking counsel to recommend at the Rule 16 conference) procedures for claiming privilege; protecting information against inadvertent disclosure or other waiver, and making provisions for protecting the information if it is disclosed (Fed. R. Civ. P. 26(b)(5));38 and requiring counsel to submit a log of potentially privileged, discoverable documents;39 • if you are a district judge, designating a magistrate judge to supervise discovery; or in complex litigation, when the overall litigation costs justify it, appointing a special master (see Chapter 8, sections B and C, infra, for a discussion of magistrate judges and special masters);

36. See MCL 4th, supra note 10, § 11.45. 37. Id. § 11.433. When deciding whether to issue a protective order, the court should consider not only the rights and needs of the parties but also the existing or potential interests of those not involved in the litigation. Pursuant to Fed. R. Civ. P. 26(c), protective orders should be issued “for good cause shown.” Federal courts are public courts and the business conducted there should be conducted publicly unless there is a specific reason to keep certain matters confidential. To be relevant in the modern world, courts need to protect the legitimate secrets and private information of litigants and participants in the litigation process. 38. Federal Rule of Evidence 502 protects the disclosure of attorney work product or materials protected by attorney–client privilege if the disclosure was inadvertent and steps were taken to prevent disclosure and to correct the error, including complying with Rule 26(b)(5) (in which the claim for protection must be expressly stated and the documents described). 39. MCL 4th, supra note 10, § 11.431.

36 Chapter 3: Discovery Management

• requiring samples of electronic discovery be produced early and the data discussed to determine what issues, if any, may arise regarding the nature, location, format, preservation, or other challenges to producing electronically stored information;40 • requiring a conference between counsel before filing a motion in addition to the requirement that the parties certify that there has been a good-faith effort to resolve the dispute; • requiring that counsel present the dispute to you by telephone conference before filing a formal motion; • setting and enforcing page limits on motions and time limits for filing; and • awarding costs to the party prevailing on a motion.

D. Limiting Discovery 1. In general Establishing control early and setting appropriate limits on the timing, scope, and methods of discovery can help you to prevent excessive discovery activity, forestall disputes, and increase both fairness and the perception of fairness by not letting the “big guy” paper the “little guy” into submission.41 In particular, setting an early and firm discovery cutoff date to fit the needs of the case encourages the efficient prosecution and defense of the case, reduces the need for judicial involvement, and is a way to shorten overall case disposition time.42 In addition, setting limitations on the number of interrogatories (Fed. R. Civ. P. 33) has been found to measurably reduce overall lawyer work hours and shorten overall time to case disposition.43 Moreover, handling early any issues or problems with

40. Id. § 11.446. 41. The FJC Discovery Study found that high levels of discovery problems and expenses were more likely to occur in cases that were complex, contentious, had high stakes, or had high volumes of discovery. Problems in these cases were not limited to a particular type of discovery, but occurred in all or most aspects of discovery. Attorneys in tort and civil rights cases were more likely to report problems than attorneys in other types of cases. FJC Discovery Study, supra note 35, at 554–55. 42. See RAND CJRA Report, supra note 4, at 16, 26. 43. See James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data 55–58 (RAND Institute for Civil Justice 1998) [hereinafter RAND Discovery Report].

37 Civil Litigation Management Manual the preservation or production of electronically stored information will prevent unnecessary and costly disputes.44 Consider • holding a brief (ten- to fifteen-minute) scheduling teleconference in all cases—even if you do not have time to hold a comprehensive Rule 16 conference, it is valuable to touch base with counsel at the beginning of the case; • asking counsel to make a case for the discovery they expect to conduct; • requiring the parties in the Rule 26(f) plan to outline the nature, scope, duration, and costs of discovery; and • phasing discovery, aiming successive stages toward central, potentially dispositive issues, and asking counsel to report back on discovery progress, thus permitting you to assess trial and settlement prospects based on the interim discovery findings that result. The principle of proportionality embodied in Federal Rule of Civil Procedure 26(b) enables you to take affirmative steps to ensure that there is a reasonable relationship between the costs and burdens of discovery and what is at stake in the litigation. By taking an individualized approach to each case, you can ensure a fair application of discovery limitations. Consider • setting overall time limits and incorporating them into the scheduling order; • limiting sua sponte the “frequency or extent of use of the discovery methods” under Federal Rule of Civil Procedure 26(b)(2); • stating a clear definition of the substantive scope of permitted discovery based on issue identification; • if the parties propose early dispositive motions, phasing discovery and shaping it to serve these motions, and staying other discovery until motions-related discovery is complete; • ensuring that all early issues regarding discovery of electronic information are addressed, such as whether the material is readily accessible; and

44. See generally Managing Discovery of Electronic Information, supra note 12.

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• in the most complex cases, phasing discovery by time period or issue and requesting accompanying status reports with the completion of each phase.45 You are in a unique position to ensure a fair and open process and to prevent unnecessary delay. For illustrative forms and orders setting limits on discovery, see Appendix A, Forms 2, 11, 19–21, and 29. The Manual for Complex Litigation, Fourth also provides useful advice.46

2. Document requests Unnecessarily broad or burdensome document requests are among the most dreaded, expensive, and time-consuming tools employed in the discovery process.47 Moreover, electronic discovery issues need to be discussed early to prevent costly litigation later. By asking direct questions and making suggestions regarding the proposed exchange of information, you can better focus the request and minimize its impact. Consider the following approach: • Ask the plaintiff, for example, at the Rule 16 conference, “What can we get without traditional discovery? What do you want from the other party? List it.” With this approach you can usually get the parties to exchange more relevant information than required under Federal Rule of Civil Procedure 26(a) without further discussion. • Record agreements between the parties at conferences and place them in the final case-management order: “Plaintiff has agreed to produce _____. Defendant has agreed to produce _____.” • Address, and have the parties agree on, what electronically stored information is accessible and what is too difficult or costly to produce, in what form it will be produced, and what information needs to be preserved beyond the normal practices of the parties. Issue an order if necessary.

45. MCL 4th, supra note 10, §§ 11.41, 11.422. 46. Id. §§ 11.422, 11.423. 47. The FJC Discovery Study found that document production is not only the most frequent form of discovery but also the one that generates the highest rate of reported discovery problems. FJC Discovery Study, supra note 35, at 530, 532.

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• Ensure the parties reach nonwaiver agreements in the event of inadvertent disclosure of privileged information to the other party. You can persuade parties to turn over voluntarily much that would have been pursued through traditional discovery methods, and you can head off many discovery disputes. This approach, as illustrated in Federal Rules of Civil Procedure 16(b)(3) and 16(c)(2), can also help determine the number and types of depositions requested and approved.

3. Depositions (who, how many, etc.) Although depositions are not the most frequent form of discovery, they account for by far the greatest proportion of discovery expenses.48 The rules limit the parties to ten oral and written depositions, unless they otherwise stipulate (Fed. R. Civ. P. 30 and 31), but the court may impose a limit on any discovery, including depositions (Fed. R. Civ. P. 26(b)(2)). You should be assertive in suggesting a course of action that will phase depositions to reach important decision-making junctures in a case while avoiding unnecessary intermediate conferences or disputes.49 This planning should be an important part of your continuing efforts to refine the case into a triable or settlement-ready matter. Naturally, such suggestions must be tailored to the individual case. The following judicial guidance to plaintiff’s counsel may be suitable, for example, in a discrimination case (depending on counsel’s requests and the scope of the claims). Consider the following instruction: You may depose the defendant, the defendant’s supervisor, the defendant’s co-worker, and the following witnesses: _____. Then stop. When you have completed these depositions, and if you believe you need additional ones, write a letter of no more than two pages, with a copy to the defendant, to inform me of your progress, where you feel you are in this case, and the settlement prospects at this juncture. Alternatively, consider asking the plaintiff’s counsel to arrange a conference call with you and opposing counsel after completing the initial depositions.

48. See id. at 540. 49. MCL 4th, supra note 10, § 11.45.

40 Chapter 3: Discovery Management

E. Handling Discovery Disputes 1. Methods for reducing the number of disputes Discovery disputes, if not controlled early and firmly, will constitute the most time-consuming, inefficient, and costly investment of judicial pretrial case-management time. You should consider adopting a formal procedure for discovery motions, clearly stating that, in general, discovery motions may not be submitted without a prior telephone conference requesting your permission to file them. Also, you may require that the parties attempt to resolve the dispute by letters and/or telephone conference with you before filing a motion. In implementing such a policy, consider the following: • requiring counsel to notify the court, by telephone, immediately after their “meet and confer” conference if they have a dispute they cannot resolve; • being firm during the first discovery dispute telephone call in any case in which you expect ongoing discovery problems—this will often prompt counsel to work out the dispute themselves; • if you cannot take the first telephone call when it comes in, having a backup district or magistrate judge who can take the call immediately; • if the dispute raises complex issues, requiring the attorneys to submit letters, no more than two pages in length, describing their positions; and • permitting the filing of a motion only upon court order. You will substantially reduce disputes by sending the message to counsel that (1) you will hear their disputes over the telephone, even during a deposition, (2) you expect professional conduct, (3) as a general rule, only work product and attorney–client privilege are valid bases for objections, and (4) discovery abuse will lead to sanctions. For an example of an order addressing discovery disputes, see Appendix A, Form 25.

2. Discovery motions Many discovery motions are unnecessary and do not warrant the investment of client time and money required to support them. Sometimes, however, a fully briefed motion is the only way to resolve important discovery issues (for example, disputes over privilege).

41 Civil Litigation Management Manual

When a fully briefed discovery motion is necessary, consider the following approach: • Ask counsel to use a letter format of no more than three double- spaced pages with no more than five case cites. This format should suffice for the majority of discovery motions submitted, as long as the motions are docketed properly by the court.

F. Discovery of Electronically Stored Information The wide array and amount of electronically stored information created by individuals and businesses, and that can be involved in litigation, can necessitate that you require the parties to identify electronic discovery issues early and with possibly greater specificity than is required for paper discovery. Handling these issues early can allow the parties to avert discovery disputes and prepare more efficiently for trial. Issues that may arise include data preservation, authentication, methods of producing the data before and during trial, and whether the costs of producing it are prohibitive or can be shifted between the parties.50 On the other hand, electronic discovery can greatly reduce cost and delay. For instance, the costs of photocopying, storing, and transporting data can be reduced dramatically or eliminated altogether, and software can assist in organizing, reviewing, and analyzing documents. The cost of using a litigation support system is reduced dramatically if the documents are in electronic form from the start and do not need to be scanned. Finally, many of the set-up costs associated with electronic courtroom presentations can be reduced or eliminated.51 Consider • encouraging early resolution of electronic discovery issues and disputes; and • when appropriate, using Rule 706 experts and special masters to handle electronic discovery issues and resolve disputes.

50. See id. §§ 11.441–11.446. 51. For a more detailed treatment of the topic, see Managing Discovery of Electronic Information, supra note 12; R.J. Hedges, Discovery of Electronically Stored Information: Surveying the Legal Landscape (BNA Books 2007); Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008).

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1. Electronic discovery issues Electronically stored information raises many issues that may not occur, or occur with less complex challenges, in paper-based discovery. Among the most common issues are the following. a. Preservation of data Electronically stored information can be easily changed, overwritten, or deleted, whether it is stored on a computer, a handheld device, the Inter- net, or an enterprise-wide network. The nature of the electronic data, the equipment on which it is created, and the business or personal practices for storing the information are all factors in determining the accessibility of data for litigation.52 Consider • asking the parties as soon as possible after litigation has com- menced to take steps to identify, preserve, authenticate, and seg- regate relevant data (such as placing relevant data on a separate server or secure website); • requiring the attorneys to agree on the steps they will take to avoid later accusations of spoliation; and • issuing a preservation, or “freeze,” order to stop the destruction of data in the normal course of business until the attorneys agree on steps to preserve certain relevant data. As a practical matter, once a paper document is destroyed, it is no longer subject to discovery. However, the deletion of electronic data does not necessarily destroy the data. Hitting the “delete” key merely renames the file in the computer or network server, marking it available for over- writing if that particular space is needed in the future. The data itself may remain available for retrieval for months or years or may be overwritten only incrementally. Computer specialists, or computer forensics experts, can restore deleted data; but, depending on the circumstances, it may be costly and time-consuming to do so. At the earliest possible stage in the litigation, consider • asking the attorneys whether they expect deleted data to be subject to discovery; and

52. The court cannot impose sanctions on a party for “failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e).

43 Civil Litigation Management Manual

• determining whether there is a need for an early data- preservation order or agreement. Businesses, as well as many individuals, periodically back up their computer data to disks or servers for disaster recovery purposes. Data and documents that have been edited, deleted, or overwritten in the normal course of business may be recovered from these sources. The problem is that backup media are not organized for retrieval of individual documents or files. Special programs may be needed to retrieve specific information. Early in the litigation, consider requiring that the attorneys discuss • what backup data may be available and, if available, accessible in a usable format for a reasonable cost; • whether these data will be subject to discovery; and • what the scope of such discovery should be and its estimated costs. b. Form of production Most written information produced in a case is created electronically. Electronically stored information is produced on a variety of equipment (desktop and laptop computers, personal digital assistants, cellular phones) using software (word-processing, database, and Internet applica- tions) that generates data or metadata in a number of different formats (text, video, audio). The form and quantity of the data to be produced in a case should be addressed early in discovery. Federal Rule of Civil Procedure 34 permits each party to request this information in any electronic medium “from which information can be obtained.” Unless the requesting party specifies a particular format, the producing party must convert the data into “a reasonably usable format” or produce it in a way that it is “kept in the usual course of business.” To protect the parties from unreasonable burden and cost, electronically stored information need not be produced in more than one format (Fed. R. Civ. P. 34(b)(2)(E)). If discovery disputes arise, the parties must meet and confer before a motion to compel the production can be filed (Fed. R. Civ. P. 37(a)), and you may order the production of the data in a format requested by either of the parties, or in another format. To examine these issues, the parties can request, or the court can order, a test or sample of the electronic data, or an inspection of the electronic system (Fed. R. Civ. P. 34(a)). How-

44 Chapter 3: Discovery Management ever, you should consider carefully any confidentiality or privacy concerns that may arise from such an inspection, as discussed in the next sections. Also discussed below are burdens associated with the time and cost of locating and producing the relevant data in a usable form. Consider • requiring an early agreement between the attorneys on the format(s) in which electronically stored information will be produced; and • asking the parties to give serious consideration to an agreement under which neither party waives privilege for inadvertent production of privileged material, if this would reduce the difficulty of screening computer-based material for privilege before production. c. Archives and legacy data As businesses, institutions, and government agencies adopt new computer systems, the data from older systems may be stored in an organized, retrievable fashion, but sometimes older data cannot be easily re- trieved or viewed using current software. Older data may be unreadable without expensive conversion to modern media formats. Also, much data is not preserved in the format it was created—for instance, old e-mail may be stored in one combined document, rather than separate documents. The parties and court should consider whether the archived data must be produced in a different or more readily usable format, and determine the costs and burdens of doing so.53 Early in the litigation, consider • requiring the attorneys to come to an understanding on whether discovery will be extended into archived material, how it will be conducted, and who will bear the costs; and • if necessary, requiring the attorneys to survey their clients’ stored data holdings and retrieval capabilities. d. On-site inspection or sampling Electronic discovery makes on-site inspections under Federal Rule of Civil Procedure 34(a) problematic. On the one hand, it may be necessary to actually view the computer system in operation to make sure the dis-

53. See MCL 4th, supra note 10, § 11.441.

45 Civil Litigation Management Manual covery protocols are being performed properly, to check the adequacy of security and chain of custody, or to ascertain the provenance of computer records. On the other hand, the nature of computer record storage and organization may be privileged information or considered a trade secret. Consider • encouraging the attorneys, to the extent it is relevant to discovery, to fully explain their computer system operations and storage, the data available, and their data-destruction policies; • if necessary, requiring the parties to produce samples of their discoverable electronic data to assist the parties in making a meaningful agreement about data production; and • requiring the attorneys to come to an agreement on whether on- site inspection is justified or necessary and, if so, what the protocol will be. e. Need for expert assistance If electronic discovery will involve any of the technical issues outlined above, the parties may need the assistance of electronic data experts. This is costly, but in the long run it may save costs and time. Once the experts have had an opportunity to assess their respective parties’ computer systems and capabilities, they will be in a much better position than the attorneys to negotiate the technical aspects of conducting discovery, including search protocols, privilege and relevance screening, and production.

2. Management tools for electronic discovery As a judge, it is not your role to dictate solutions to these thorny technical problems. Your role should be to make sure the attorneys on both sides face these issues early, negotiate solutions, and follow through. You have several tools available to help you manage electronic discovery, limit cost and delay, and, when necessary, resolve discovery disputes. a. Early exchange of computer system information At the outset of litigation, before any discovery is initiated, the attorneys should be encouraged to exchange information about their clients’ respective computer systems. The information each side needs to know includes which computer systems are in place at the moment, which computer systems were in place during the period of time relevant to an-

46 Chapter 3: Discovery Management ticipated discovery, the extent of the computerized information (including backups and archives) that will need to be searched in the course of discovery, the capabilities of each party to perform searches and produce material in a usable format, and the measures being taken to secure and preserve potential evidence. Consider • requiring the attorneys to arrange an informal meeting between the parties’ most knowledgeable computer staff, with attorneys present, to help lay the groundwork for a workable discovery plan; or • granting leave for each side to depose the other party’s most knowledgeable computer staff under Federal Rule of Civil Proce- dure 30(b)(6) prior to the start of formal discovery under Federal Rule of Civil Procedure 26(d); and • requiring the attorneys to discuss these issues at their Rule 26(f) meeting and include proposals in their 26(f) plan for inclusion in a Rule 16(b) order. b. Rule 16(c) pretrial conference agenda Perhaps the most important judicial management tool in electronic discovery is the Rule 16 pretrial conference. Federal Rule of Civil Procedure 16(c) lists several issues that may be addressed during the pretrial conference, but you may supplement that list with additional points on electronic discovery and issue a memo to the attorneys well in advance of the conference, preferably at the outset of the litigation. Topics that might be included in such a memo are evidence preservation; the identification of a technical expert who knows the party’s computer system; archiving and destruction policies; the format and accessibility of potentially relevant data; and costs and burdens associated with production. c. Rule 26(a)(1) initial disclosures The expected agenda for the Rule 16 pretrial conference sets the tone for the initial disclosures, for the Rule 26(f) “meet and confer” conference of the parties, and for the parties’ Rule 16 conference statement. The court’s local rule or your standing order can require that the parties disclose the relevant aspects of their computer systems, and that they come to an agreement on electronic discovery matters prior to the Rule 16 pretrial conference.

47 Civil Litigation Management Manual d. Proportionality Under Federal Rule of Civil Procedure 26(b)(2), you have the power to limit discovery “if the burden or expense of the proposed discovery outweighs its likely benefit.” If extraordinary efforts, such as the recovery of deleted data, are not justified by some showing that the efforts are likely to result in the discovery of relevant and material information, it is within your discretion to limit, even sua sponte, such discovery or shift the costs to the proponent. e. Cost allocation The normal rule in document discovery is that each side bears its own costs. Electronic discovery may involve extraordinary costs, however, such as legacy data restoration. The court has the power to allocate costs equitably, balancing the needs of justice with the resources of the parties (Fed. R. Civ. P. 26(b)(2)). In some cases, you may find it appropriate to condition extraordinary discovery on payment of part or all of the costs by the proponent. Factors to consider in apportioning costs include: • the specificity of discovery requests; • the likelihood of critical information discovery; • the availability of information from other sources; • the purposes for which the custodial party retains the information; • the relative benefit in obtaining the information; • the total costs associated with production; • the relative abilities and incentives of the parties to control costs; and • the resources available to each party.54 f. Rule 53 special master or Rule 706 court-appointed expert Under the Federal Rules of Civil Procedure and the Federal Rules of Evi- dence, you have the power to appoint a neutral expert to act as a special master (Fed. R. Civ. P. 53) or as an electronic data expert (Fed. R. Evid. 706).

54. See id. § 11.433.

48 Chapter 3: Discovery Management

If the parties cannot provide their own experts, or if the situation is contentious, consider appointing a neutral expert to • break an impasse; • supervise the technical aspects of discovery; or • act as a secure custodian for sensitive or disputed data. Remember, however, that there is no court budget for a neutral expert, so the cost must be borne by the parties. Even the suggestion of bringing in a neutral expert may help bring the attorneys to an agreement. See Chapter 7, section B.4, infra, for a discussion of court-appointed experts; and Chapter 8, section C, infra, for a discussion of special masters.

49 THE STATE OF DISCOVERY PRACTICE IN CIVIL CASES

Hon. Paul W. Grimm, D MD & Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein LLP

Copyright © 2011, The Sedona Conference®, Hon. Paul W. Grimm & Elizabeth J. Cabraser. All rights reserved. THE STATE OF DISCOVERY PRACTICE IN CIVIL CASES: MUST THE RULES BE CHANGED TO REDUCE COSTS AND BURDENS, OR CAN SIGNIFICANT IMPROVEMENTS BE ACHIEVED WITHIN THE EXISTING RULES?1

2009 was a busy year for those who contend that the excessive cost of the American civil

justice system discourages litigation and undermines the courts’ public function. Perhaps the

biggest contributing factor is the excessive cost of discovery in many cases in relation to the

stakes at issue. Three important surveys of lawyers2 emerged in 2009 that lend credence to these

concerns: the American College of Trial Lawyers/Institute for Advancement of the American

Legal System survey of the Fellows of the American College of Trial Lawyers (“ACTL/IAALS

1 Paul W. Grimm, Chief United States Magistrate Judge, United States District Court, District of Maryland, and Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP (San Francisco/New York). Principal author Paul W. Grimm especially thanks and acknowledges the participation and assistance of 2010 Civil Litigation Conference co-panelists Honorable David G. Campbell, United States District Court, District of Arizona; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Patrick Stueve, Stueve Siegel Hanson (Kansas City, MO); Professor Catherine Struve, University of Pennsylvania Law School; and Stephen D. Susman, Susman Godfrey, LLP (Houston/New York), whose discussions and debates in preparation for the panel, “Issues Within the Current State of Discovery: Is There Really Excessive Discovery, and if so, What are the Possible Solutions?” and whose range of views on this challenging subject generated many of the insights, experiences, and suggestions discussed in this article. 2 Interestingly, there do not appear to have been any recent surveys of judges to learn their perceptions regarding any shortcomings in the civil litigation system; their views with respect to suggested changes that should be adopted; or their opinions regarding how well they fulfill their obligations to manage the pretrial process, including prompt resolution of discovery disputes. The most recent judicial survey conducted by the Federal Judicial Center containing questions regarding discovery in general was conducted in 1992 and published in 1994. See Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994). A 2002 Federal Judicial Center study surveyed magistrate judges, but it was limited to their experience with computer-based discovery issues. See Molly Treadway Johnson, Kenneth J. Withers & Meghan A. Dunn, A Qualitative Study of Issues Raised by the Discovery of Computer-Based Information in Civil Litigation (Sept. 13, 2002), http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/ inavgeneral?openpage&url_r=/public/home.nsf/pages/196 (submitted to the Judicial Conference Advisory Committee on Civil Rules for its October 2002 meeting). Given the central importance that all the lawyer surveys and the advisory notes to the Rules of Civil Procedure place on active involvement of judges in and management of the pretrial process, it would be highly instructive to see what the judges are thinking on these issues. It certainly would assist in determining whether there are widespread judicial attitudes that conflict with those of the bar.

861247.1 -1- Survey”);3 the Federal Judicial Center survey of lawyers involved in all cases that were closed

during the fourth quarter of 2008 (“FJC Survey”);4 and the American Bar Association Section of

Litigation survey of its members (“ABA Survey”).5

The ACTL/IAALS Survey resulted in various recommendations for reforms to the civil

justice system, and the IAALS has followed up with recommended changes, including

significant changes to the Rules of Civil Procedure,6 as well as suggested case management

strategies to be used by courts to improve the functionality (or at least reduce the cost) of the

system.7 For example, the ACTL/IAALS Survey took the position that “[a]fter initial

disclosures are made, only limited additional discovery should be permitted. Once that limited

discovery is completed, no more should be allowed absent agreement or a court order, which

should be made only upon a showing of good cause and proportionality.” The Survey

3 See FINAL REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM 1-3 (2009), http://www.actl.com/AM/Template.cfm?Section=Home&template= /CM/ContentDisplay.cfm&ContentID=4053 (“Final Report”) (outlining survey and proposing solutions to problems identified in survey); INTERIM REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM (2008), http://www.actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/ContentDisp lay.cfm&ContentID=3650 (detailing survey results). 4 EMERY G. LEE, III & THOMAS E. WILLGING,FEDERAL JUDICIAL CENTER NATIONAL,CASE- BASED CIVIL RULES SURVEY:PRELIMINARY REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES (2009), http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf. 5 ABA SECTION OF LITIGATION MEMBER SURVEY ON CIVIL PRACTICE:DETAILED REPORT (2009), http://www.abanet.org/litigation/survey/docs/report-aba-report.pdf. 6 For expediency, reference to the “Rules of Civil Procedure,” a “Rule,” or “Rules” will be to the Federal Rules of Civil Procedure. 7 INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM,21ST CENTURY CIVIL JUSTICE SYSTEM:AROADMAP FOR REFORM:PILOT PROJECT RULES (2009), http://www.du.edu/legalinstitute/pubs/pilot_project_ rules.pdf (“IAALS Pilot Project Rules”); INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM,21ST CENTURY CIVIL JUSTICE SYSTEM:AROADMAP FOR REFORM:CIVIL CASEFLOW MANAGEMENT GUIDELINES 5 (2009), http://www.du.edu/legalinstitute/pubs/civil_caseflow_management_guidelines.pdf (“IAALS Guidelines”).

861247.1 -2- acknowledged that this was “a radical proposal.” 8 As possible areas for further consideration, the ACTL/IAALS Survey also suggested revisions to the Rules to include, inter alia, limiting the scope of discovery by changing the definition of relevance; limiting persons from whom discovery can be sought; limiting the types of discovery (e.g., eliminating interrogatories); increasing numerical limitations on discovery; eliminating depositions of experts whose testimony is limited to the contents of their written reports; limiting the time available for discovery; and imposing financial limits on the amount of money that can be spent—or that a party can require its opponent to spend—on discovery.9

Similarly, the IAALS Pilot Project Rules aim to “reverse the default” position of the

existing Rules on the scope of discovery, by limiting the facts that are subject to discovery;10

changing the rules of pleading to require the party bearing the burden of proof on a claim or affirmative defense to “plead with particularity all material facts that are known to that party that support that claim or affirmative defense and each remedy sought, including any known

monetary damages;”11 and limiting expert discovery to the contents of a written report stating the opinions and supporting reasons.12

The ABA Survey reported that 25% of the lawyers who responded believed that the

8 Final Report, supra note 3, at 9. 9 Id. at 10-11. 10 IAALS Pilot Project Rules, supra note 7, at Rules 1.2 cmt., 10.2 (“Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality . . . including the importance of the proposed discovery in resolving the issues, total costs and burdens of discovery compared to the amount in controversy, and the total costs and burdens of discovery compared to the resources of each party.”). 11 Id. at Rule 2.1 (defining a “material fact” as “one that is essential to the claim or defense and without which it could not be supported”). 12 The expert’s testimony at trial would also be “strictly limited” to those opinions and reasons, with no additional expert discovery allowed, unless permitted in the initial pretrial order. Id. at Rule 11.1.

861247.1 -3- Rules “should be reviewed in their entirety and rewritten to address today’s needs.” More than

38% of the respondents believed that “one set of rules cannot accommodate every type of case.”13

While all of these studies increase awareness of deficiencies in the civil litigation system, it does not follow that a new round of comprehensive changes is the best or quickest way to achieve desired change. The old saying “[t]hose who cannot remember the past are condemned to repeat it”14 comes to mind regarding today’s criticisms of the state of discovery practice in civil cases. One need only read the Advisory Committee Notes for Rules changes decades ago to see that the same criticisms were raised then. While it is possible to envision some changes to the Rules of Civil Procedure, it is worth asking whether that is the best route to improvement, or whether the real problem is the failure to adhere to the Rules in their current form. In fact, the existing Rules provide all of the necessary tools to achieve the changes in practice that have eluded us for decades. Without behavioral change in the key participants in the civil justice system, however, even sweeping modifications to the Rules will not foster achievement of the desired goal. We might wish first to change the Rulers (judges) and the Ruled (lawyers) before reverting to yet another effort to change the Rules.

After all, there are three players in this drama whose actions cause the litigation system to succeed or fail: the parties themselves, the lawyers who represent them, and the judges who preside over their cases. Each is responsible for the status quo, and each must change if the system’s shortcomings are to be improved. While it may be true that ours is a litigious society, in our litigation system the parties have choices, each of which bears a price tag. Moreover, where, as in the United States, the general rule is that each side bears the cost for its own

13 ABA Survey, supra note 5, at 2. 14 George Santayana, Reason in Common Sense, in THE LIFE OF REASON (1905).

861247.1 -4- litigation expenses (including counsel fees), absent any cost shifting statute, contractual

agreement, or egregious conduct of an adversary that warrants shifting the costs as a sanction, the parties have the power to increase or decrease the cost of litigation.

Parties that seek discovery from an adversary because, not in spite, of the cost or burden it will impose, as well as parties who willingly pay their attorneys handsomely for filing motions designed to delay or prolong the discovery process as a tactic to exhaust their opponent, all contribute to the cost of the process without increasing its quality or value. If the credo is “win at any cost,” the costs are likely to be substantial.

Parties who select the most expensive options, and courts who give them carte blanche to

do so without imposing limitations, should not complain about the resulting cost. And the most

costly process may actually violate due process if the cost is disproportional to the value of the

case or beyond the means of the opposing party.

Similarly, lawyers who profit from actions that increase the cost of civil litigation—

notably, adopting a gratuitously confrontational approach to discovery—also contribute to the

problem. Indeed, the most self-righteous critics of the discovery practices of plaintiffs’ lawyers

often are the defense counsel who are rewarded handsomely for their time and effort spent to

obstruct, delay, or minimize that discovery.

Finally, if a recurrent theme can be divined from all of the studies and the commentary to

the myriad rule changes in the last thirty years, it is that the most effective way to control

litigation costs is for a judge to take charge of the case from its inception and to manage it

aggressively through the pretrial process by helping shape, limit, and enforce a reasonable discovery plan, resolve disputes that the parties cannot settle on their own, and keep the case on a

tight schedule to ensure the most expeditious disposition of the case by motion, settlement, or

861247.1 -5- trial.15

All of this makes sense in the abstract, but in practice the problem is nuanced and

complicated. There are judges who, disliking the acrimony of discovery disputes, avoid taking

control of the process.16 Likewise, many judges recognize the need to take control, but cannot

15 ABA Survey, supra note 5, at 3 (“78% of respondents believe that early intervention by judges helps to narrow the issues, and 72% believe that early intervention helps to limit discovery . . . . 73% of all respondents believe that when a judicial officer gets involved early and stays involved, the results are more satisfactory to their clients.”); Final Report, supra note 3, at 2 (“Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. According to one Fellow, ‘Judges need to actively manage each case from the outset to contain costs; nothing else will work.’”); IAALS Pilot Project Rules, supra note 7, at Rule 4.1 (“As soon as a complaint is filed, a judge will be assigned to the case for all purposes, and, absent unavoidable or extraordinary circumstances, that judge will remain assigned to the case through trial and post-trial proceedings.”); IAALS Guidelines, supra note 7, at Guideline Two (“Judicial involvement in the management of litigation should begin at an early state of the litigation and should be ongoing. A single judge should be assigned to each case at the beginning of litigation and should stay with the case through its disposition.”); Fed. R. Civ. P. 26(g) Advisory Committee Note to the 1983 Amendment (“Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanctions to deter discovery abuse would be more effective if they were diligently applied ‘not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.’ National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)....Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards will significantly reduce abuse by imposing disadvantages therefor. Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court's inherent power. See Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661- 62 (D. Col. 1980) .... The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances.”). 16 The results of the ABA Survey showed that 59% of the lawyers believed that district judges are not available to resolve discovery disputes on a timely basis (although 66% of plaintiffs’ lawyers, 66.8% of lawyers representing both plaintiffs and defendants, and 72% of defense lawyers believed that magistrate judges were available to resolve discovery disputes on a timely basis); 62.6% of plaintiffs’ lawyers, 79.1% of lawyers representing both plaintiffs and defendants, and 81.2% of defense lawyers believed that judges do not invoke Rule 26(b)(2)(C) to limit discovery on their own initiative; and 67.3% of defense lawyers and 62.6% of lawyers representing both plaintiffs and defendants (but 38.2% of plaintiffs’ lawyers) believed that judges do not enforce Rule 26(b)(2)(C) to limit discovery, even when asked to do so by a party. Footnote continued on next page

861247.1 -6- do so, given the time constraints imposed by heavy caseloads. Similarly, without providing

specific tools to ameliorate the situation, it is unhelpful to admonish lawyers that the rules of

professional responsibility, the adversary system, and the Rules of Civil Procedure all support the proposition that cooperation in discovery is the most effective way to represent a client well

and achieve a good result. Finally, because the parties themselves so seldom are involved directly with the court during the pretrial stages, it is not surprising that their perceptions are

affected by their self-interest, the quantum of resources they are prepared to spend on the

litigation, and what their lawyers advise them will be allowed. Litigation by attrition, for those who can afford it, is endorsed if not actively encouraged. The inevitable result is disproportionality. While some judges involve the parties in developing a pretrial schedule and discovery plan to control costs and ensure proportionality, this practice is not sufficiently commonplace, for understandable reasons: Active and informed case management takes time, and time is the most precious and scarce judicial resource. Often, however, the investment of a few hours can avoid hundreds of hours, and thousands or millions of dollars, of the litigants’— and the courts’—time and money.

The remainder of this paper makes two points. First, the tools already exist to ensure that the civil litigation process is cost-effective, is proportional to what is at issue in the litigation, and affords both sides fair discovery to ensure that essential facts needed to adjudicate or resolve the case are discovered. Second, the real change that is needed is a change in existing, inappropriate attitudes and behaviors that have stymied efforts to reach the goal of widespread cost-effective, proportional pretrial proceedings, including discovery. The starting place for this discussion is the Rules themselves.

Footnote continued from previous page ABA Survey, supra note 5, at 63-64, 77-78.

861247.1 -7- Rule 26(d)(1) prohibits a party from seeking discovery before the parties have conferred

as required by Rule 26(f), which requires that the parties meet “as soon as practicable” to consider “the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case . . . [and] discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”17 A failure to participate in good faith in

developing such a plan is sanctionable under Rule 37(f). The discovery plan that the parties

must develop and submit to the court for approval must be comprehensive and include the

parties’ “views and proposals” with regard to: Rule 26(a) required disclosures (e.g., what

disclosures have been or will be made, whether other disclosures are necessary, and whether the

timing and form of disclosures is appropriate), Rule 26(f)(3)(A); the subjects of and timeline for

discovery, as well as any limitations that should be imposed, Rule 26(f)(3)(B); electronic

discovery (e.g., form of production), Rule 26(f)(3)(C); privilege or protection of trial-preparation

materials, and whether the court should incorporate any agreement that the parties may have

reached regarding post-production assertion of privileges, Rule 26(f)(3)(D); discovery limitations

that should be lifted or imposed, Rule 26(f)(3)(E); and any relevant orders that the court may

have issued, Rule 26(f)(3)(F). Though easy to overlook in this list, Rule 26(f)(3)(E) is especially

instructive, as it allows the parties to discuss and provide the court with their views on any

changes that should be made in the limitations on discovery imposed under the Rules, or any

local rule of court, and what, if any, limitations should be imposed.

The provisions of Rule 26 allow a defendant, for example, to observe that given the

17 Rule 26(d)(1) provides some exceptions to this prohibition, namely when Rule 26(a)(1)(B) exempts a proceeding from initial disclosure or when the Rules, a court order, or a stipulation authorizes earlier discovery.

861247.1 -8- likelihood that the plaintiff will recover only a modest sum of money if he wins, discovery should be limited to no more than two depositions of not more than two hours each, interrogatories should be foregone, document production should be limited to a few key documents, and written expert reports should suffice, with no expert depositions allowed. The plaintiff would be free to agree or not, and the issue would be framed for a Rule 16(a) conference with the court. Rule 16(f) permits the court to sanction a party or attorney who is substantially unprepared to participate, or who fails to participate in good faith, in the conference. Rules 16 and 26 enable—indeed, require—the court to determine and enforce a proportional discovery plan even if one or both sides seems bent on unreasonable or excessive discovery.

Critics of the status quo who lament the Rules’ apparent “one-size-fits-all” approach to discovery, and who argue that certain types of cases warrant special rules, overlook the utility of

Rules 26(f) and 16(a). Why are special rules needed if an experienced judge can sit down with counsel to tailor a discovery plan for a particular case, unless it is because: (a) the parties or lawyers are not acting in good faith; (b) the parties or lawyers are taking generalized and doctrinaire positions unsupported by specific facts; (c) the court is not taking seriously its obligation to manage the case, or is unable to do so because of the crush of other business;

(d) those involved are unfamiliar with or unappreciative of the flexibility and alternatives available under the existing Rules; or (e) a combination of the above?

Anecdotal evidence from the judges’ perspective indicates that courts seldom receive proposed discovery plans from the parties that reflect meaningful efforts to drill down on the issues they are supposed to discuss at the Rule 26(f) conference. Why then adopt a slew of new discovery rules that make a priori determinations about the amount of discovery that should be allowed in particular classes of cases, when for each generalized assumption there may be valid

861247.1 -9- reasons for allowing different discovery than permitted by the Rules? It is inconceivable that any new rule limiting discovery for particular classes of cases or limiting particular types of discovery will not have “unless otherwise ordered by the court for good cause shown” or similar language tacked on. In that event, all that will be accomplished when the parties disagree is that there will be a new round of motions practice that, if not promptly resolved by the court, will delay the proceedings and add to the costs. Would it not be easier before adopting new rules, to address the reasons why parties, lawyers, and judges do not employ the existing Rules to achieve the same result on a case-by-case basis?

Rules 16(a) and 26(f) are not the only case management tools ignored or honored in the breach. Rule 16(c) prescribes the ground rules and provides a menu of procedures and innovations for consideration at one or a series of pretrial conferences. Rule 16(c)(2)(A)-(P) offers an array of discovery, case management, and trial alternatives that enable the cost and complexity of the procedures of every case to be custom-tailored to the nature and scope of the issues, and to the amount at stake. This is far from a “one-size-fits-all” system, and its manifest goal, as stated in Rule 16(c)(2)(P), is to facilitate “the just, speedy, and inexpensive determination of the action.” This is not a vague bromide. The Rule 16(c)(2) toolkit includes suggestions for limits on discovery, cumulative evidence, deposition and trial time, and pretrial motions, by using admissions, stipulations, amendments, periodic formal or informal status conferences, and creative uses of severance and consolidation under Rule 42, as well as summary adjudication under Rule 56. If a lawyer, party, or the court offers a good idea to streamline discovery or trial, or to advance the determination of a threshold or dispositive issue, the Rule

16(c)(2)(A)-(P) menu includes, allows, and encourages it.

Further, Rules 26(b)(2)(C) and 26(g) contain powerful language intended to ensure that

861247.1 -10- discovery in each case is tailored to that which is proportional to what is at issue in the case,

taking into consideration a wide range of cost-benefit factors. Rule 26(g) provides that the

signature of a lawyer or unrepresented party on a discovery request, response, or objection certifies that, inter alia, it is “neither unreasonable nor unduly burdensome or expensive,

considering the needs of the case, prior discovery in the case, the amount in controversy, and the

importance of the issues at stake.” Similarly, Rule 26(b)(2)(C) states that the court, on its own or

in response to a motion, must limit the frequency or extent of discovery otherwise allowed by

these rules or by local rules if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.18

Any truth behind the “disproportionality” point made at the outset of this article is thus

not expressive of a failure in the Rules themselves, but rather, must be viewed as an indictment

of the parties, lawyers, and judges for allowing this to occur in the face of constraints that the

Rules already provide. The problem is an absence of will.

Consider the following hypothetical, which exemplifies what is considered wrong in

discovery today. The plaintiff, a woman, sues a large corporation alleging discriminatory

employment practices that prevented her selection for a senior management position that went to

an allegedly less-qualified man. Contemporaneously with filing suit, her lawyer sends a demand

to the defendant to preserve electronic and hard-copy documents and data on the desktop 18 FED.R.CIV. P. 26(b)(2)(C) (emphasis added).

861247.1 -11- computers, laptops, PDAs, backup tapes, voicemail, and text messages of a long list of “key players” in the litigation. She threatens spoliation sanctions if these demands are not met. At the

Rule 26(f) “meet and confer,” she says she intends to request production of voluminous documents going back fifteen years; depose more than ten fact witnesses; take a Rule 30(b)(6) deposition covering twenty-four subjects; and engage in expert witness discovery involving multiple experts.

The defendant objects, in generalized and non-specific terms, that the discovery sought is excessively burdensome and costly; that plaintiff seeks discovery from sources that are not reasonably accessible and would involve undue expense; that the assembly of the electronic data responsive to the discovery demand would involve countless hours to screen it for relevance and to withhold privileged or work-product protected information; and that all this is patently excessive because the plaintiff has little chance of prevailing, and that even if she did, her likely recovery would be paltry compared to the discovery cost that the defendant would bear.

What can be done to address the plaintiff’s legitimate discovery needs while ensuring that the cost of the pretrial process is not disproportionately expensive or burdensome? Must we change the discovery rules to prohibit interrogatories in this case, limit the number of depositions beyond the ten that are already allowed by the Rules, or prohibit discovery of electronically stored information (“ESI”), as some have proposed? Or can any “disproportionality” problem be solved simply by adherence to the present Rules? The answer is obvious. If the plaintiff’s attorney abides by the requirements of Rule 26(g), she cannot in good faith make the broad discovery demands that she has made until she makes a “reasonable inquiry” and concludes that her demands are “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of

861247.1 -12- the issues at stake in the action.”19

Similarly, the defense attorney is obligated to ask the same questions before objecting to

the requested discovery (and considerable case law requires that objections based on burden or

expense must be made with factual particularity, or else they are waived).20 If both counsel comply with Rule 26(g), they are well prepared, at their Rule 26(f) discovery planning conference, to evaluate the factors in Rule 26(f)(3)(A)-(F) to reach an accommodation to the extent possible, and to agree to disagree on those issues that require judicial resolution.

In doing so, they are limited only by their own imagination and their willingness to

cooperate in the process to obtain outcomes favorable to their clients, without sacrificing

legitimate areas of disagreement. They surely are not limited by the Rules. The options

available to them are staggering. They can agree to forego interrogatories, or limit them, or phase them, saving, for example, the more burdensome “contention interrogatories” until the end of discovery. They can phase the discovery to focus first on a limited sub-set of witnesses and documents that are most likely to yield the most evidentiary “bang-for-the-buck,” while reserving the right to seek additional discovery in the future if warranted by what the initial discovery has disclosed. If worried about the cost of reviewing limitless ESI for privilege or work product, they can agree to use electronic search and information retrieval techniques and

19 FED.R.CIV. P. 26(g)(1)(B)(iii). 20 See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358-59 (D. Md. 2008); A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006); Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005); Wagner v. Dryvit Sys. Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (citing Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980)); Thompson v. Dep’t of Hous. & Urban Dev., 199 F.R.D. 168, 173 (D. Md. 2001); Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 38 (D. Md. 2000) (citing Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 498 (D. Md. 2000); Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D. Kan. 1994); Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991); Willemijn Houdstermaatschaapij BV v. Apollo Computer, Inc., 707 F. Supp. 1429, 1439-40 (D. Del. 1989)); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996); Obiajulu v. City of Rochester, Dep’t of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996); Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 1102 (D.N.J. 1996).

861247.1 -13- sampling,21 combined with a Fed. R. Evid. 502(e) non-waiver agreement, and ask the court to

approve it under Fed. R. Evid. 502(d) so that it is binding on non-parties. They can agree to

postpone expert discovery until after fact discovery is over, or simply to exchange expert reports

that comply with Rule 26(a)(2)(B) and forego expert depositions. As for the issues on which

they disagree, despite good faith efforts to reach an accord, parties can file a motion with the

court requesting a prompt ruling.22 They can do all this and more to tailor the discovery to the legitimate needs of the parties while keeping it proportional, and yet they do not, in so many cases.

The existing Rules cannot work to deliver fair and proportional discovery unless the

parties and their lawyers approach the process with genuine cooperation, instead of

gamesmanship. While the word “cooperation” does not appear in the discovery rules

themselves, the Rules cannot work without it, and trial and appellate courts long have held that cooperation during discovery is both essential and expected.23 Moreover, the recent surveys

21 See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260-61 (D. Md. 2008) (discussing search and information retrieval techniques (such as individual key words, Boolean searches, identifying a “core” search, and “cluster” searching) and non-waiver agreements). 22 And, pursuant to Rule 26(b)(2)(C), the court has an obligation to resolve the dispute in a way that achieves the goals of fair and proportional discovery. In this process, the court also is limited only by its imagination and interest, and failure of will should be no excuse. 23 See, e.g., Kemp v. Harris, No. WDQ-08-0793, 2009 WL 3030738, at *3-4 (D. Md. Sept. 22, 2009) (observing that “this entire dispute could, and should, have been avoided had counsel cooperated in the conduct of discovery, as they are obligated to do” and directing parties to “meet and confer regarding Harris’s contention”) (citing Mancia, 253 F.R.D. at 358; Rule 26(g)); Oracle USA, Inc. v. SAP AG, No. C-07-01658 PJH (EDL), 2009 WL 3009059, at *2 (N.D. Cal. Sept. 17, 2009) (noting that “the Court has repeatedly emphasized that the scope of this case required cooperation in prioritizing discovery and in being mindful of the proportionality requirement of Federal Rule of Civil Procedure 26” and that the “lack of prompt disclosure . . . and the failure to cooperate on defining the contours of appropriate discovery . . . threatens the fair and cost-effective exchange of relevant discovery”) (citing The Sedona Conference, The Sedona Conference Cooperation Proclamation (2008) (“SCCP”), available at http://www. thesedonaconference.org/content/tsc_cooperation_proclamation, as “promoting ‘open and forthright information sharing . . . to facilitate cooperative, collaborative, transparent discovery’”); Gipson v. Sw. Bell Tel. Co., No. 08-2017-EFM-DJW, 2009 WL 790203, at *21 (D. Kan. March 24, 2009) (advising counsel “to communicate and cooperate in the discovery Footnote continued on next page

861247.1 -14- Footnote continued from previous page process in an attempt to resolve their discovery disputes without judicial involvement” and remarking that “[a]ll parties will benefit if they can avoid the further costs of filing additional motions and voluminous briefs”), aff’d in part, denied in part on other grounds, No. 08-2017- EFM, 2009 WL 4157948 (D. Kan. Nov. 23, 2009); Viacom Int’l, Inc. v. YouTube, Inc., No. C- 08-80211 MISC. JF(PVT), 2009 WL 102808, at *7 (N.D. Cal. Jan. 14, 2009) (directing the parties to “meet and confer on the format of production” and stating that it “‘is in the interests of each of the parties to engage in this process cooperatively’”) (quoting Mancia, 253 F.R.D. at 365), aff’d, No. C-08-80211 MISC. JF(PVT), 2009 WL 1110818 (N.D. Cal. Apr. 24, 2009); S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 414-15 (S.D.N.Y. 2009) (bringing to the parties’ attention the SCCP, and stating that it “urges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes” and the SCCP “notes that courts see the discovery rules ‘as a mandate for counsel to act cooperatively’”; directing counsel “to meet and confer forthwith and develop a workable search protocol that would reveal at least some of the information defendant seeks”); Mancia, 253 F.R.D. at 357-58 (“It cannot seriously be disputed that compliance with the ‘spirit and purposes’ of these discovery rules [i.e., Rules 26-37] requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot ‘behave responsively’ during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.”); Bd. of Regents of the Univ. of Neb. v. BASF Corp., No. 4:04CV3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”); Network Computing Servs. Corp. v. CISCO Sys., Inc., 223 F.R.D. 392, 395-96 (D.S.C. 2004) (discussing problems caused by failures of counsel and parties to approach discovery more cooperatively and professionally); see also Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44-45 (1st Cir. 2007) (sustaining certain sanctions imposed by district court for discovery violations and noting with disapproval the lack of cooperation and responsiveness of defendants to plaintiff's attempts to comply with the discovery schedule); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir. 1996) (“This Court cannot determine where the fault in this latest breakdown of attempted discovery lies. The Court is therefore assuming that both attorneys have failed in this regard. This Court is not happy with the progress, or should say lack of progress, relating to getting this case ready for trial. It is apparent that the attorneys involved in this case do not like each other, do not get along, and will not cooperate in the discovery process. The people who suffer when this happens are the parties.”); Buss v. W. Airlines, Inc., 738 F.2d 1053, 1053-54 (9th Cir. 1984) (“The voluminous file in this case reveals that a vast amount of lawyer time on both sides was expended in largely unnecessary paper shuffling as the parties battled over discovery and preliminary matters.... It is not the purpose of this decision to assess fault. The trial judge, however, was not at fault. A judge with a caseload to manage must depend upon counsel meeting each other and the court halfway in moving a case toward trial.”); Flanagan v. Benicia Unified Sch. Dist., No. CIV S-07-0333, 2008 WL 2073952, at *10 (E.D. Cal. May 14, 2008) (“The abusiveness of plaintiff's discovery responses indicate a lack of cooperative spirit.... [P]laintiff’s wilful disregard of the Federal Rules, and her lack of communication and cooperation with defense counsel in regard to all discovery, undermine the judicial process plaintiff herself has invoked.”); Marion v. State Farm Fire & Cas. Co., No. 1:06cv969-LTS- RHW, 2008 WL 723976, at *3-4 (S.D. Miss. Mar. 17, 2008) (“[T]he gravest ‘error’ committed by the Magistrate [Judge] was thinking that ‘the parties [could] meet and confer to discuss any outstanding discovery requests,’ because after this ‘meet and confer’ it was ‘clear that the parties had done little to resolve their perceived differences on document production.’ . . . This Court demands the mutual cooperation of the parties. It hopes that some agreement can be reached.... Footnote continued on next page

861247.1 -15- reveal that lawyers themselves recognize that discovery costs are reduced, the case proceeds more smoothly, and advocacy is not adversely affected when the parties cooperate in discovery.24 Why then, is such cooperation so often lacking in the discovery process?

The answer is not simple. At the outset, it is hard to measure the degree to which litigants cooperate because in those cases, judicial intervention is less likely to be required.

Additionally, the notion that cooperation is required during discovery runs counter to imagined requirements of the adversary system persistently held by many lawyers. This perception, however, ignores the fundamental requirements of the adversary system itself.25 The hallmarks of the adversary system were best stated by one of its most ardent proponents, Professor Lon L.

Fuller,26 as follows:

Footnote continued from previous page Neither [the Magistrate Judge] nor this Court will hesitate to impose sanctions on any one—party or counsel or both—who engages in any conduct that causes unnecessary delay or needless increase in the costs of litigation.”) (citing Rule 26(g)); In re Spoonemore, 370 B.R. 833, 844 (Bankr. D. Kan. 2007) (“Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties’ resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable.”); Azalea Garden Bd. & Care, Inc. v. Vanhoy, No. 06 CVS 0948, 2009 WL 795287, at *6 (N.C. Super. Ct. Mar. 6, 2009) (“Judges and lawyers should resurrect the original intention of the discovery rules, which was to make discovery a more cooperative and less adversarial system designed to reduce, not increase, the cost of litigation. . . . Our system of civil justice cannot function effectively and economically unless lawyers and judges return to the original intention of the discovery rules and make cooperation, communication, and transparency the cornerstones of the discovery process.”). 24 FJC Survey, supra note 4, at 63 (reporting that, with regard to the statement “Attorneys can cooperate in discovery while still being zealous advocates for their clients,” 63.7% of plaintiffs’ lawyers “agreed or strongly agreed,” 61.8% of lawyers representing both plaintiffs and defendants “agreed or strongly agreed,” and those primarily representing defendants “agreed or strongly agreed” 55.9% of the time); ABA Survey, supra note 5, at 3, 11 (“95% [of respondents] believe that collaboration and professionalism by attorneys can reduce client costs”). 25 Mancia, 253 F.R.D. at 361 (“The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society.”). 26 Professor Fuller “was a celebrated professor at Harvard Law School who wrote extensively on jurisprudence, including the importance of the adversary system.” Mancia, 253 F.R.D. at 361 Footnote continued on next page

861247.1 -16- Thus, partisan advocacy is a form of public service so long as it aids the process of adjudication; it ceases to be when it hinders that process, when it misleads, distorts and obfuscates, when it renders the task of the deciding tribunal not easier, but more difficult.

.... The lawyer’s highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends.

. . . A lawyer recreant to his responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its justification. Everywhere democratic and constitutional government is tragically dependant on voluntary and understanding co-operation in the maintenance of its fundamental processes and forms.

It is the lawyer’s duty to preserve and advance this indispensable cooperation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness....

. . . It is chiefly for the lawyer that the term “due process” takes on tangible meaning, for whom it indicates what is allowable and what is not, who realizes what a ruinous cost is incurred when its demands are disregarded. For the lawyer the insidious dangers contained in the notion that “the end justifies the means” [are] not a matter of abstract philosophic conviction, but of direct professional experience.27

The adversary system can be justified as our society’s preferred method for resolving disputes only to the extent it promotes efficient and reasonable procedures leading to the identification of the competing facts that support the “sharp clash of proofs” presented to the fact-finder for resolution. As Professor Fuller aptly noted, “partisan advocacy” is not a public service when it hinders, rather than aids, the process of adjudication, or makes the job of the

Footnote continued from previous page n.4. One of his most influential publications was The Forms and Limitations of Adjudication, 92 HARV.L.REV. 353 (1978). 27 Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1162, 1216 (1958).

861247.1 -17- “deciding tribunal” more difficult.28 While a lawyer owes a duty of advocacy to the client, this

duty must co-exist with, not undermine, a concomitant duty to the court to ensure that the

process of adjudication is fair, efficient, and cost-effective. As noted in Mancia29:

A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve. Thus, rules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.

Most lawyers will agree in theory with the above discussion. Applying it in a specific case, however—where a client is hell-bent to crush its adversary and has the resources to find another, more aggressive and less scrupulous lawyer to do so, should its present lawyer be

perceived as too timid—is another matter. The challenge is to convince clients that it is in their

economic interest to cooperate with the adverse party to reduce costs so as to focus on what

really matters. As long as skeptics dismiss the call to a cooperative approach to discovery as the

unachievable, unrealistic, and idealistic aspiration of those who observe the process from afar,

reform efforts are likely to fail. The difficult work is showing the skeptics why they are wrong.30

28 Id. (quoted in Mancia, 253 F.R.D. at 361-62). 29 253 F.R.D. 362-63 (footnotes omitted that cite, e.g., Fed. R. Civ. P. 26(c)(1), (f), (g), 37(a)(1); Model Rules of Prof’l Conduct R. 3.4(d) & cmt. [1] (2007); 28 U.S.C. § 1927 (2006)). 30 Here is an especially thoughtful observation on this problem: Cooperation, however, is in the interest of even an aggressive client, and an attorney who persuasively explains this to the client serves both the client and his or her own professional obligations. Such a client must first understand what cooperation is and is not. Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean Footnote continued on next page

861247.1 -18- That work has begun in earnest, and it deserves and requires widespread and enthusiastic

support. In 2008, The Sedona Conference (the “Conference”), long respected for its pioneering

work in developing best practices in the area of discovery of ESI, published its “Cooperation

Proclamation,” which launched “a national drive to promote open and forthright information

sharing, dialogue (internal and external), training, and the development of practical tools to

facilitate cooperative, collaborative, transparent discovery.”31 The Conference then went further,

Footnote continued from previous page forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay. . . . Moreover, both counsel and clients should recognize that an obstructionist, overreaching, or simply non-cooperative approach to discovery invites adverse consequences for the non-cooperative party itself. This can take the form of non-cooperative conduct in return from the other side, leading the parties to conduct discovery “the hard way,” with each party incurring unnecessary expense as a result of the other side’s non-cooperative approach, but neither gaining a strategic or tactical upper hand. It can also take the form of an adverse decision or even sanctions on the discovery dispute in question. Non- cooperative conduct early in the discovery process can lead a court to view that party’s position less favorably when discovery disputes ripen and come before the court.

The Sedona Conference, The Case for Cooperation, 10 SEDONA CONF. J. 339, 359-60 (Supp. 2009), available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/ caseforcooperation.pdf. A further way to overcome client skepticism regarding the need for and benefits of cooperation during discovery would be to involve the client or client representatives in the pretrial conference with the court. Anecdotal evidence from judges who have done so suggests that when the client hears directly from the court the advantages of cooperation and disadvantages of failing to cooperate, especially if expressed in economic terms, even clients who are hostile to their adversary can come to understand why it is to their own advantage to cooperate. 31 The Sedona Conference, The Sedona Conference Cooperation Proclamation,10SEDONA CONF. J. 331, 331 (Supp. 2009) (“Cooperation Proclamation”), available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation_article .pdf (reprinting the Cooperation Proclamation).

861247.1 -19- proposing to develop “a detailed understanding and full articulation of the issues and changes

needed to obtain cooperative fact-finding,” including developing “toolkits” to train and support judges, professionals, and students in the techniques of cooperative and collaborative

discovery.32 The Conference has published an article titled The Case For Cooperation, which

comprehensively discusses the problems that exist due to the failures of cooperation during

discovery; the requirement of cooperation that is implied in the Rules of Civil Procedure; the fact

that the ethical and professional obligations of lawyers are consonant with cooperation; and

perhaps most importantly, the fact that cooperation produces economic and strategic benefits to

the client.33

In an article titled The Bulls-Eye View of Cooperation in Discovery, Professor Stephen S.

Gensler34 described in pragmatic and clear terms a model that “identifies and justifies the

different types of cooperation in a way that reinforces—rather than diminishes—the overall

campaign” to achieve cooperation during discovery.35 The Conference has now begun to draft

the “toolkits” to be made available to lawyers, judges, court-appointed experts, volunteer

mediators, law students, and alternative dispute resolution programs, which can be used to teach

32 Mancia, 252 F.R.D. at 363 (citing the Cooperation Proclamation). 33 The Case for Cooperation, supra note 30, at 339. Justice Stephen G. Breyer of the United States Supreme Court authored the preface to the Volume 10 Supplement to The Sedona Conference Journal, in which he stated: The Sedona Conference Cooperation Proclamation, and supporting document, The Case for Cooperation, suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases. Stephen G. Breyer, Preface,10SEDONA CONF. J. i, i (Supp. 2009). 34 Welcome D. & W. DeVier Pierson Professor, University of Oklahoma College of Law. 35 Stephen S. Gensler, A Bulls-Eye View of Cooperation in Discovery, 10 SEDONA CONF. J. 363, 363 (Supp. 2009).

861247.1 -20- and facilitate cooperation during discovery.

While inaugurated by the Conference, the effort to achieve cooperation in discovery cannot succeed unless joined by others who want to change the way that discovery is practiced.

The organizations and lawyer associations calling for change, educators who will produce the future litigators, and the courts themselves36 must participate in this effort. This does not mean that the call for rule changes that might promote cost-effective, fair, and proportional discovery need be abandoned. But Rule changes are not enough. Attitudes and behaviors must change as well.

Logically, if a change in attitudes is to take hold, it should start in the law schools.

Unfortunately, law schools generally do not focus on discovery practice, providing no more than a cursory examination of how discovery relates to the Rules of Civil Procedure. Rarely do curricula address the real-life challenges and demands of litigation practice in our stressful economic environment. At most, these issues are relegated to seminars taught by adjunct professors. Law school faculty should be enlisted to teach students the problems that discovery presents, and the procedural tools to solve them. The ethics and principles to which lawyers should adhere must be integrated with traditional civil procedure and litigation courses.

The remainder of this paper illustrates the kinds of steps that the key players in litigation can take to tailor discovery to the needs of specific cases, such that the discovery process is proportional to the claim. The list is intended to prompt imaginative counsel and judges to use the existing rules in a manner that achieves these goals, and is by no means exhaustive.

1. Develop a Discovery Budget, and Involve the Parties in the Process.

As suggested in Mancia, 253 F.R.D. at 364, when the parties meet and confer to develop 36 As of October 2009, ninety-five federal and state trial and appellate judges, the author of this article included, have endorsed the Cooperation Proclamation. Cooperation Proclamation, supra note 31, at 334-38.

861247.1 -21- a discovery plan, they should attempt to develop a “discovery budget.” This should start with an

exchange of estimates regarding the range of recovery that might be expected if the plaintiff

prevails in the litigation. While this works best in cases where the primary goal is to recover

money, it also can be used in cases for equitable relief. If counsel agree that the plaintiff, if

successful, is likely to recover between $750,000 and $1,000,000 (and that, if the plaintiff does

not prevail, recovery will be $0), then they next attempt to agree on what percentage of that

figure is reasonable to expend on the discovery process. Stated differently, they attempt to

answer this question: “In a rational dispute resolution process, how much money should be

expended to discover the facts needed to resolve a dispute worth at most $1,000,000?” Lawyers

know what discovery costs, whether it is per page, per hour, per expert, or per deposition. Even

if the lawyers cannot fully agree, they usually are able to estimate a range, and generally, their

estimates overlap considerably.37 Reasonable minds can differ, but no one would say that the

cost of resolving a dispute should equal the amount of the largest probable recovery. If the

plaintiff says that the “transaction cost” for discovery should be up to 30% of the possible

recovery, or $300,000, and the defense attorney says only 15%, or $150,000, an average of the

two can produce a useful measure to use to try to develop a budget.

While lawyers know the cost of fact discovery and expert witnesses, many judges do not,

which handicaps them in managing the process. How much do expert witnesses charge? How

many hours are involved in preparing an expert report, and in preparing for, and taking and defending, an expert deposition? What do lawyers charge per hour, and how many lawyers, for

37 The experience of most judges that have been involved in settlement negotiations with counsel is that even when the parties disagree on which side is likely to prevail, they usually agree substantially about the probable range of damages that may be recovered. Even if they do not, a useful range can be obtained for planning purposes by simply averaging the projections of counsel to come up with a useful yardstick.

861247.1 -22- how many hours, will be engaged in the discovery process? Judges who are charged by the

Federal Rules to ensure proportionality need that information in order to do their jobs. Absent disclosure of those estimated costs, often an unbalanced equation exists in which plaintiffs’ counsel, often prosecuting on a contingency basis, endeavor to limit the costs they advance and the time they spend, while defense counsel, working on an hourly basis, do the reverse. Judges can restore the balance, so that the only burden imposed is the burden of proof, not the burden to match the time and costs of the side that is prepared to spend more.

Under a budget system, counsel (with the assistance of their clients) discuss the discovery required to develop the facts reasonably needed to evaluate the case for settlement, dispositive motions, or trial. This entails estimating actual costs of document production, including ESI, and all its attendant costs (such as privilege review). Necessarily, rough estimates are assigned, but that exercise alone tends to open the eyes of both client and attorney as to what the real costs may be. If it becomes apparent, for example, that the documents that the plaintiff intends to request would impose excessive costs on the defendant to assemble, review, and produce, then the parties should discuss the plaintiff’s priorities, focusing on the most important documents, and reserving for another day the right to demand more, if necessary.

Judges who have ordered phased discovery, focusing first on that which is most likely to reveal the most relevant information, permitting the parties to seek additional discovery later

(albeit with the possibility of cost-shifting), have found that they seldom return for more. Rather, they cooperate in identifying key inquiries and information and the most efficient means to discover it. If the parties then find that they must seek additional discovery, that request is generally based on a far more accurate showing of need.

It is important to involve the principals in discussing the discovery budget, especially

861247.1 -23- when the discussion addresses the cost-benefit proportionality factors of Rule 26(b)(2)(C), and the procedural options of Rule 16(c)(2). When the costs are taken into account and subtracted from gross recovery, it is amazing how quickly attitudes can be reformed. The common experience of magistrate judges, who frequently supervise the discovery process, has been that when asking plaintiffs’ counsel how much the plaintiff is willing to pay to cover the cost of the additional discovery that the plaintiff wants beyond what was allowed in the first phase of discovery, few have responded that their clients were willing to absorb, or even share, the additional expense.38

Significantly, if cooperation is insufficient, or the parties simply cannot agree on a

budget, that does not doom the effort to develop a realistic budget. The judge assigned to the

case can resolve any disagreements to set the budget, or appoint a third party with the experience and knowledge to act as a mediator to recommend an initial budget.

Some argue that setting a discovery budget is more difficult in cases in which money damages are not the primary objective, or when the case is unique (e.g., a case of first impression, or one brought to establish important rights or obligations). Though this may be true, two observations are in order. First, the vast majority of cases in both state and federal court are filed exclusively, or at least primarily, to obtain money damages. Second, even for those that are not, it is still useful to develop a discovery budget by cooperatively discussing the amount and nature of discovery each party will require, and by evaluating the importance of the subject matter of the litigation and the resources of the parties.

A final note in this regard. As suggested above, if a judge must resolve greatly divergent

38 This assumes, of course, that the first phase of discovery was indeed focused on the plaintiff’s most important discovery needs, the amount of initial discovery was reasonable, and the defendant has responded diligently and in good faith to make a complete and responsive production. If not, then cost-shifting is unfair and inappropriate.

861247.1 -24- positions regarding the development of a discovery budget, a meeting with counsel and the

parties may be in order. Each lawyer can be asked to state the discovery sought and to estimate

the amount of time and cost that his or her client will have to bear to obtain it. When required to

make such an estimate in the client’s presence, a lawyer is less likely to give an artificially low

estimate for fear that the client will be upset if the prediction is low, and the final bill is

substantially larger. The judge can facilitate this candor by asking the lawyer: “Will you put that

estimate in writing and agree that if you are wrong, you will not charge more?” A hesitant

response will speak volumes regarding the bona fides of the estimate. Similarly, if a lawyer is on

a contingency, the judge can ask, in the client’s presence: “If the court orders this additional

discovery that you say you must have, and which your adversary objects to as excessively burdensome and expensive, how much of it is your client willing to pay to require the defendant to produce it?” Few plaintiffs in contingency cases are prepared for this contingency.

Suggesting it can help a great deal in readjusting unrealistic expectations or demands.

The purpose of a discovery budget will be thwarted if either side believes—or fears—that its opponent will run the meter, or run out the clock, consuming time and money budgeted for discovery with the production of non-essential or marginally relevant documents, while withholding “the good stuff.” Often, the most important information is produced last, after all delaying or obfuscatory tactics have been exhausted and invocations of privilege have been challenged and denied. When the quantity of discovery is limited, its quality must be assured, or limitations will only benefit discovery resisters. Lawyers will abandon costly and time- consuming “bargaining” behavior (asking for more in discovery than they need, because they expect to obtain only a fraction of their request) only when they are confident that courts will enforce the prioritized production of essential and relevant information.

861247.1 -25- 2. Courts Should Adopt Local Rules or Guidelines that Stress the Need for Cooperation in the Discovery Process as an Expectation of the Court, and the Willingness of the Court to Resolve Discovery Disputes Promptly When They Occur.

When the parties and lawyers know at the outset what the court expects, and that if they

fail to behave accordingly, they will suffer meaningful adverse consequences, they are far more

likely to fall into line. While this paper has noted the plethora of court decisions that insist that

cooperation in discovery is essential,39 actually memorializing this requirement in a Local Rule or guideline reinforces the uniformity of the requirement imposed by all the judges of that court.

An example of a recently published guideline is Guideline 1 of the Discovery Guidelines for the

United States District Court for the District of Maryland, which provides:

Fed. R. Civ. P. 26 requires that discovery be relevant to any party’s claim or defense; proportional to what is at issue in a case; and not excessively burdensome or expensive as compared to the likely benefit of obtaining the discovery being sought.

The parties and counsel have an obligation to cooperate in planning and conducting discovery to tailor the discovery to ensure that it meets these objectives. Counsel have a duty to confer early and throughout the case as needed to ensure that discovery is planned and conducted consistent with these requirements and, where necessary, make adjustments and modifications in discovery as needed.

During the course of their consultation, counsel are encouraged to think creatively and to make proposals to one another about alternatives or modifications to the discovery otherwise permitted that would permit discovery to be completed in a more just, speedy, inexpensive way. By way of illustration only, such alternatives could include different or additional deadlines for the filing of motions or the completion of all or part of discovery; accelerated exchanges of disclosures, additional data or descriptions of the parties’ claims and defenses; sampling techniques; and substantial limitations on, or even the elimination of, depositions, coupled with alternative methods of exchanging or obtaining factual information or the equivalent of deposition testimony.

....

39 See supra note 23.

861247.1 -26- Attorneys are expected to behave professionally and with courtesy towards all involved in the discovery process, including but not limited to opposing counsel, parties and nonparties. This includes cooperation and civil conduct in an adversary system. Cooperation and civility include, at a minimum, being open to, and reasonably available for, discussion of legitimate differences in order to achieve the just, speedy, and inexpensive resolution of the action and every proceeding. Cooperation and communication can reduce the costs of discovery, and they are an obligation of counsel.40

As noted above, a substantial number of the lawyers surveyed in the ABA Survey

expressed the belief that judges were not willing enough to address and resolve discovery

disputes promptly.41 That is a serious problem. Local Rules that impose a burden of cooperation on counsel and the parties should likewise express clearly the court’s obligation to act promptly to resolve disputes, including imposition of innovative measures. There is an old lawyer’s saying that makes this point: “I can live with a ruling that goes in favor of me, I can live with a ruling that goes against me, but I can’t live with no ruling at all.” Here is an example of language in one federal court’s Discovery Guidelines that addresses this issue:

The parties and their counsel are encouraged to submit to the Court for approval their agreements to expand or limit discovery. If, however, counsel are unable to reach agreement on a discovery plan that substantially modifies the normal course of discovery, and either side believes that the Court’s assistance would be helpful in framing or implementing such a plan, then the Court will make itself available with reasonable promptness, in response to a brief, written request for a discovery management conference that identifies the issues for consideration.

....

Upon being notified by the parties of the unresolved discovery dispute, the Court will promptly schedule a conference call with counsel, or initiate other expedited procedures, to consider and resolve the discovery dispute. If the Court determines that the issue is too complicated to resolve informally, it may set an

40 D. Md. Loc. R. App. A, Discovery Guidelines for the United States District Court for the District of Maryland, Guideline 1.a, c (Dec. 1, 2009), http://www.mdd.uscourts.gov/localrules/ localrulesAugust09v3.pdf (“Discovery Guidelines”). 41 See supra note 16.

861247.1 -27- expedited briefing schedule to ensure that the dispute can be resolved promptly.42

3. Seasoned Practitioners Have Developed Common-Sense Systems That Can Be Adapted and Adopted by Courts for Wider Use.

Veteran litigators know how to streamline discovery and pre-trial procedures by reaching

agreements and accommodations with opposing counsel on many matters that otherwise would

become the subject of discovery disputes and would consume judicial and financial resources.

Within the context of active case management involvement (including ongoing access) by the

judges, experienced lawyers will work things out among themselves, especially if they are

encouraged and rewarded for doing so, and are given concrete templates to follow.

One system, which has proved workable in a wide array of cases, has been developed over time by prominent litigator Stephen D. Susman. The following list is adapted from an internal memo which Mr. Susman distributes to the lawyers in his firm, and which he presents to opposing counsel in his cases. It includes agreements for the conduct of depositions, service of

papers, e-discovery protocols, protective orders, cost sharing, and trial logistics.

“Susman’s Checklist”

the other will feel disadvantaged. Place a check mark next to all the agreements that are reached.

Any modifications or additions should be noted.

1. As to any discovery dispute, the lead lawyers will try to resolve by phone and no one will write letters to the other: just e-mail and phone calls.

2. Depositions will be taken by agreement, with both sides alternating and trying in advance to agree upon the dates for depositions, even before the

42 Discovery Guidelines, supra note 40, at Guideline 1.a, f.

861247.1 -28- deponents are identified. In jurisdictions where there is no limit to the length or number of depositions, each side gets 10 lasting for 6 hours each.

3. The parties will use the same court reporter/videographer, who agrees to provide specified services at discounted prices for the right to transcribe all depositions.

4. All papers will be served on the opposing party by e-mail.

5. Documents will be produced on a rolling basis as soon as they have been located and numbered; if copies are produced, the originals will be made available for inspection upon request.

6. Each side must initially produce electronically stored information from the files of 5 custodians selected by the other side during an agreed period of time. Only documents which have a lawyer's name on them can be withheld from production and only if they are in fact privileged. Production does not waive any privilege and documents can be snapped back whenever the producing party recognizes they are privileged. After analyzing the initial production, each side can request electronic files from 5 other custodians. Beyond that, good cause must be demonstrated.

We will produce ESI in the native format kept by the producing party, or in a common interchange format, such as Outlook/PST, Concordance or Summation, so it can be searched by the other side. If any special software is required to conduct a search in native format and is regularly used by the producing party, it must be made available to the other side. We will produce a Bates numbered file listing of the file names and directory structure of what is on any CDs or DVDs exchanged. Either side may use an e-mail or an attachment to an e-mail that came from one of these previously produced disks by printing out the entire e-mail (and the attachment if they are using a file that came with an e- mail) and marking it at the deposition or trial, and either side may use application data (which was not an attachment to e-mail–so its standalone on a CD or DVD) as long as the footer on the pages or a cover sheet indicates (1) the CD or DVD from whence it came, (2) the directory or subdirectory where the file was located on the CD or DVD, and (3) the name of the file itself including the file extension.

7. If agreement cannot be reached on the form of a protective order within 48 hours of the time they are exchanged, both sides will write a letter to the Court including each other’s preferred version and, without argument, ask Court to select one or the other ASAP.

8. All deposition exhibits will be numbered sequentially X-1, X-2, etc., regardless of the identity of the deponent or the side introducing the exhibit and the same numbers will be used in pretrial motions and at trial.

9. The parties will share the expense of imaging all deposition exhibits.

861247.1 -29- 10. Neither side will be entitled to discovery of communications between counsel and expert witnesses or to drafts of experts’ reports.

11. The production of a privileged document does not waive the privilege as to other privileged documents. Documents that the other side claims are privileged can be snapped back as soon as it is discovered they were produced without any need to show the production was inadvertent [note: this non-waiver principle is now embodied in Fed. R. Evid. 502].

12. Each side has the right to select 20 documents off the other’s privilege list for submission to the court for in camera inspection.

13. Demonstrative exhibits need only be shown to the other side before shown to the jury and need not be listed in any pretrial order.

14. An agreed upon jury questionnaire.

15. An agreed upon juror notebook possibly containing a cast of characters, list of witnesses (and their photos), time-line, glossary, dispositive documents, etc.

Judge David Campbell, of the District of Arizona, has used the Susman Checklist in cases in his court, providing it to lawyers as a suggestion to foster practical case management agreements. He has also noted the barriers to the practice of common sense litigation that arise from lawyers’ inexperience and mistrust. Judge Campbell observes:

Steve’s list definitely should be discussed at the Conference. It also, however, is a “good lawyers’” list. My discovery difficulties arise from the large majority of lawyers who would never think of or agree to the items on the list. The civil rules must apply to the weakest of lawyers as well as the best, and I hope we’ll be able to think of some system-wide changes that would reduce the cost of litigation in all cases, not just good-lawyer cases.

Something that Steve’s list alludes to is very true in my court. There is a disconnect between what happens in discovery and what happens at trial. Of the 5% of civil cases that actually go to trial, I would guess that 95% of the discovery is never seen or heard by the jury. A few examples: lawyers often mark hundreds of trial exhibits, and yet rarely are more than a few dozen used in front of the jury; depositions are sometimes read or played, but they are rarely dispositive evidence in the case (lawyers manage to get the key witnesses to trial), and even when used for impeachment, depos rarely affect the outcome of the case; interrogatory answers and requests for admission have never been used in 32 civil trials over which I’ve presided.

Part of the problem is that most lawyers don’t try cases. They cannot tell

861247.1 -30- what will truly be relevant. They also are insecure—they feel compelled to turn over every stone for fear of missing some important fact. Experienced trial lawyers – especially criminal lawyers, in my experience—can see up front what will matter to the jury and they go get it.

Judge Campbell has additional suggestions, borne of his case management experience,

and his familiarity with reforms introduced in the Arizona courts:

There are several system-wide changes that could be considered. We could consider requiring more affirmative disclosures. Andy Hurwitz’s paper on the Arizona experience [to be made available on the 2010 Conference website] addresses this possibility. Although I think it has helped in Arizona, I did not see it significantly reduce discovery here when I was practicing – most lawyers still felt compelled to turn over every stone.

Given the general aversion of lawyers to turning over unfavorable evidence, and given the fact that many lawyers have little trial experience and therefore an insecurity about what they should seek in discovery, I suspect the only changes that will really reduce discovery—other than a fundamental revamping of the system to become more pleading-based and less discovery- based—are hard limits. For an example, what if the Rules (or a court tailoring discovery to a particular case) said (a) depositions may be taken only of parties and three other witnesses per side, (b) experts cannot be deposed (but neither can they testify unless they produce a sufficiently detailed report, and their testimony will be strictly limited to their report), (c) depositions shall not last more than 4 hours, (d) interrogatories are abolished, (e) requests for admissions and document production requests are sharply limited—say 20 per side, and (f) these limits can only be changed with the approval of the judge and upon a showing that manifest injustice will result if they were not changed (i.e., more than good cause). Granted, such an approach would not work in all cases, but that would be the point of allowing judge-approved increases when truly required. When combined with strict time limits for trial (I set significant time limits in all my civil trials, and they work fine), I suspect these limitations would work in the vast majority of cases.

Judge Campbell concludes:

I’m not sure these are good ideas for every case, but I think they are worth considering. I also recognize that it would be very hard to get such limits through the Civil Rules process. But the point of the 2010 Conference is to think about possible solutions to what everyone seems to agree is too much and too expensive discovery, and so I throw it out for consideration.

On the topic of discovery limits, experienced litigators tend to agree more often than judges might suppose. Steve Susman, for example, “agrees totally with limiting the length of

861247.1 -31- depositions to 4 hours.” As he notes, “[t]hat would cut discovery expenses by a third.”

Mr. Susman also supports limits on the number of depositions:

I would limit the number of depositions to 6 per side, but not distinguish between parties and non-parties. I also favor Judge Campbell’s rule on expert reports, but would allow expert depositions to be among the 6 a party chooses to take: if someone wants to waste their shots, fine.

On the topic of written discovery, Mr. Susman opines:

I find most interrogatories useless, but I also find it doesn’t cost a lot to answer them. The best discovery device is document production. What makes it so expensive is for the producing party to have to review first for relevance and privilege. If you could just turn over all files of 5 identified employees, without having to make that review, it wouldn’t cost much at all. The Rules could encourage that, by providing a no-fault, unlimited clawback.

With respect to “clawback,” recently-enacted Fed. R. Evid. 502 indeed now provides a non-waiver rule and a clawback system. As lawyers and judges become familiar and comfortable with Rule 502, it should reduce the volume of documents withheld on privilege grounds, and the frequency and scope of privilege disputes. The Rule should be deployed to foster disclosure of key documents within a safe harbor of confidentiality. That was certainly the intent of the drafters.

CONCLUSION

The existing Rules of Civil Procedure, augmented by Fed. R. Evid. 502, and illuminated by “best practices,” such as those mentioned in this article, the Manual For Complex Litigation,

Fourth (Federal Judicial Center 2004), innovative Local Rules, and the ongoing work of The

Sedona Conference, are a rich source of principled and cost-effective guidelines for improved case management, which have yet to be fully explored, appreciated, and utilized in civil litigation.

A renewed commitment by the legal profession, the judiciary, and the academy to teach,

861247.1 -32- learn, internalize, practice, and enforce the existing Rules can take us a long way toward true civil litigation reform. Without such a commitment, manifest in actual conduct, new Rules and

Rule changes will flounder.

861247.1 -33-

GREGG H. KANTER

University of Pennsylvania Contributing Author, Report and Recommendations on B.A. in Philosophy, 1985 Mandatory Retirement Practices in the Profession (2007). Scott M. Berman has a varied complex securities and commercial litigation practice. He represents large institutional investors, funds of funds, investment advisors, and wealthy individuals in securities and fraud litigations involving hedge funds and their auditors, administrators, prime brokers, and other professionals ( e.g. , Madoff feeder funds, Lancer, Beacon Hill, Lipper, Livingston, Granite, Manhattan). He also represents hedge fund receivers and liquidators (e.g., Carlyle Capital Corporation Limited (in Liquidation) and Beacon Hill) as well as hedge fund investors in bankruptcy and receivership proceedings (e.g., Bayou, Wood River) and other matters (e.g., Amaranth). Mr. Berman also represents companies, officers and directors, and high net worth individuals in federal and state courts, and in arbitrations in jurisdictions across the country. He has also litigated numerous bankruptcy matters on behalf of creditors, equity holders, and debtors. In addition to his litigation practice, Mr. Berman counsels hedge funds, funds of funds, and investment managers.

Among other things, Mr. Berman currently is representing investors that lost many millions of dollars in Madoff feeder funds in litigation against the funds' manager, parent, and auditor, and the liquidators of the failed Carlyle Capital Corporation hedge fund in litigation against various Carlyle entities. He has obtained favorable settlements on behalf of investors who lost many millions of dollars in the Granite, Manhattan, Beacon Hill, and Lancer hedge funds.

Other recent representations include the defense of a public company and its president in a class action and SEC investigation; defending against guaranty claims asserted by the Federal Reserve Bank of New York; representing partners in partnership disputes; commencing and defending against fraudulent conveyance actions; and commencing arbitrations against broker-dealers on behalf of former high-level employees and defrauded investors.

Mr. Berman is frequently quoted in the financial press on hedge fund-related issues. His many speaking engagements have included a July 2010 appearance at a Hedge Fund Accounting, Auditing and Administration Conference sponsored by Financial Research Associates, where he spoke about "Avoiding Litigation in a Post-Madoff World; " two appearances at 2009 Madoff & Ponzi Scheme Litigation Conferences presented by HB Litigation Conferences; "Meeting Investor Demands While Protecting Strategies" at the 2008 Hedge Fund Risk Management Conference; "Hedge Fund Due Diligence for Private Investors" at the 2008 Annual Wealth Management Forum sponsored y Institutional Investor Events; "Avoiding the Perils of Operational Oversight: What Can Be Learned From the Latest Fund Failures and Lawsuits" at the 2008 Annual Meeting of the Hedge Fund Business Operations Association; "Case Study of Hedge Fund Blowup" at the 2006 MARHedge Cayman conference on Hedge Fund Best Practices; "Hedge Fund Symposium" at the 2006 Securities Forum hosted by the Connecticut Department of Banking, Securities and Business Investments; and "Enforcement/Fraud Concerns" at the 2003 SEC Hedge Fund Roundtable. He also is a frequent lecturer on federal practice at bar association programs. Mr. Berman is the author of "Non-Party Discovery," Litigation (Summer 1997); a co- author of the New York County Lawyers' Association Report on the Federal Study Committee's Recommendation to Abolish Diversity Jurisdiction, 158 F.R.D. 185 (1994); and the principal author of the New York County Lawyers' Association Report on Pretrial Orders (1989). He is a member of the Committee on Securities Litigation of the Litigation Section of the American Bar Association, and a past Chair of the Committee on Federal Courts of the New York County Lawyers' Association. He is also a member of the New York City Bar, the District of Columbia Bar, and the New York State Bar Association. He is a member of the Board of Directors of the New York County Lawyers' Association and currently serves as one of the association's delegates to the New York State Bar House of Delegates.

Mr. Berman has been selected for inclusion by Law & Politics in Super Lawyers® 2010 New York Edition for having attained the highest degree of peer recognition and professional achievement in the multiphase Super Lawyers selection process which includes, among other factors, peer evaluations. Mr. Berman also received this designation in 2007, 2008, and 2009.

Mr. Berman graduated from Emory University in 1979 and received his law degree from New York University School of Law in 1982. Prior to joining Friedman Kaplan Seiler & Adelman LLP, he was a partner at Brown Rudnick Berlack Israels LLP in New York. Mr. Berman is also admitted in the District of Columbia.

Charles W. Cohen Partner Co-Chair, eDiscovery

New York P: (212) 837-6856 F: (212) 299-6856 [email protected]

Practice Areas Areas of Concentration Litigation eDiscovery ■ Litigation, both domestic and international, including products Product Liability & Toxic Torts liability and general commercial litigation with experience in state and federal courts, arbitrations and Congressional and Education Information Department of Justice investigations. Georgetown University Law Center, J.D., 1995, cum laude ■ Electronic discovery and information management in litigation Brooklyn College, B.A., 1992, magna and non-litigation settings. cum laude; Phi Beta Kappa

Awards and Recognitions Bar Admissions New York, 1996 ■ Ranked by Chambers USA as one of the top Products Liability District of Columbia, 1997 lawyers in the United States New Jersey, 2004 Florida, 2012 ■ Recognized by the Legal 500 USA as one of the top product liability and mass tort defense lawyers (pharmaceuticals and Court Admissions medical devices) United States Supreme Court United States Court of Appeals for the ■ Ranked by Euromoney's Guide as one of The World's Leading Second Circuit Product Liability Lawyers United States Court of Appeals for the ■ Recognized and listed in The International Who's Who of Product Tenth Circuit Liability Defence Lawyers and The International Who's Who of United States District Court for the Business Lawyers District of New Jersey United States District Court for the Eastern District of New York Selected Matters United States District Court for the Northern District of New York ■ Representation of a major pharmaceutical company in national United States District Court for the and international class action and individual personal injury Southern District of New York litigation.

No aspect of this communication has been approved by the Supreme Court of New Jersey. For information regarding the selection process for honors or accolades referred to above, please visit www.hugheshubbard.com/awardmethodology.

■ Representation of a major blood center in numerous cases involving alleged virus-contaminated blood transfusions as well as patent licensing disputes.

■ Representation of a major medical device manufacturer in patent-antitrust cases

■ Representation of a major music licensing organization in various antitrust matters and in commercial litigation.

■ Representation of a major insurance company in insurance coverage matters involving silicone-gel breast implants and tobacco.

Selected Decisions

■ In re: Vioxx Litigation, 395 N.J.Super. 358, 928 A.2d 935 (App. Div. 2007) (affirming dismissal for forum non conveniens of cases brought against client by residents of England and Wales).

■ Hemingway v. New York City Health and Hospitals Corp. and New York Blood Center, Inc., 13 A.D.3d 484, 787 N.Y.S.2d 86 (App. Div., 2nd Dep’t. 2004) (affirming summary judgment in favor of client).

Professional Activities

Current

■ Chair, New Jersey Defense Association Products Liability Committee

■ Member, Defense Research Institute (DRI) E-Discovery Committee

Prior

■ Member, Lawyers for Civil Justice E-Discovery Committee

■ Association of the Bar of the City of New York Special Committee to Encourage Judicial Service (Secretary 9/2000 to 12/2006)

■ New York County Lawyers’ Association Trade Regulation Committee (Vice-Chair 9/1997 to 6/2000)

Publications

■ Winning Prescription Medicine Personal Injury Cases on Motion, New Jersey Defense, Fall 2011 (co-author)

■ Zubulake Revisted: Six Years Later, Law 360, January 15, 2010 (http://securities.law360.com/articles/143679) (co-author) ■ Products Liability 2008: A Year in Review (American Bar Association Section of Litigation web publication, http://www.abanet.org/litigation/committees/products/home.html) (co-author)

■ Intellectual Property Misuse: Licensing and Litigation (American Bar Association Section of Antitrust Law 2000) (co-author and member of Editing Committee)

■ Intellectual Property Law Annual 1997, 1998, 1999, 2000, and 2001 (New York Intellectual Property Law Association) (co- author of “Antitrust and Misuse Law” chapter)

Lectures

■ “Privilege in the Electronic Age,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, March, 2012

■ “Cross-Border Discovery: Asia, Europe and More,” Webinar, June 30, 2011 (available at http://www.catalystsecure.com/past- events/567-cross-border-discovery-asia-europe-and-more.html)

■ "Electronic Discovery," New York County Lawyers’ Association seminar, “Winning Cases in Federal Court,” New York, New York, June 14, 2011

■ “The Expanding Role of Search in E-Discovery,” Webinar, May 23, 2011 (available at http://www.catalystsecure.com/past- events/535-the-expanding-role-of-search-in-e-discovery.html)

■ “Data Protection,” International Bar Association Conference, Krakow, Poland, May 20, 2011

■ “Watson, The NY Times Doomsday Article and the Legal Profession,” ESIBytes Podcast, April 1, 2011 (available at www.esibytes.com/?p=1829)

■ “What Lawyers Need to Know About Search,” Catalyst Secure’s “The Expanding Role of Search in E-Discovery” Seminar, New York, New York, March 2, 2011

■ “Legacy Data Issues and E-Discovery Pain,” ESIBytes Podcast, January 18, 2011 (available at www.esibytes.com/?p=1601)

■ “A Focus on Class Actions and MDL: Coordination and Other Winning Strategies for Resolution in Multiple Jurisdictions,” American Conference Institute “Mass Tort Products Liability Claims” Program, New York, New York, September 30, 2010

■ "Electronic Discovery," New York County Lawyers’ Association seminar, “Winning Cases in Federal Court,” New York, New York, July 7, 2010

■ "Management of Complex Litigation," International Bar Association Conference, Washington, D.C., April 15, 2010 ■ “e-Discovery Case Law Update - Winter/Spring 2010,” Fios Inc. Webcast, March 24, 2010

■ “Privilege in the Electronic Age,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, March, 2010

■ “Mass Torts: The Defense Perspective,” New York State Trial Lawyers Institute CLE Seminar, “How to Find, Understand, and Litigate Mass Torts,” New York, New York, May 7, 2009

■ “Multilingual Madness: Globalization is Colliding with the Complexity of E-Discovery, ” Legal Tech, New York, New York, February 3, 2009

■ “Products Liability 2008: A Year In Review,” American Bar Association, Joint Meeting of the Products Liability, Mass Tort, and Environmental Law Committees, Vail, Colorado, January, 2009

■ “We’re All in This Together: Coordination with Your Outside Counsel Is Essential to Successful E-Discovery,” Corporate Counsel Seminar “Mastering the Discovery Process for the General Counsel,” New York, New York, November, 2008

■ “The Ups and Downs of Removal and Remand,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Data Overload: Effectively Dealing with Information Preservation and Discovery,” Mealey’s Litigation and Trial Strategies SuperConference, Miami, Florida, October, 2008

■ “Qualcomm v. Broadcom: What Lessons Have We Learned?,” Association of Litigation Support Professionals, Webinar, May, 2008

■ “Discovery of Foreign Language Documents,” Catalyst Secure Seminar, New York, New York, December, 2007

■ “Managing Multiple Litigations and Class Actions,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Somerset, New Jersey, October, 2007

■ “Use of Technology at Trial,” Atlantic City Inns of Court, Atlantic City, New Jersey, March, 2007

■ “Electronic Discovery,” New Jersey Corporate Counsel Association/New Jersey Defense Association, Woodbridge, New Jersey, October, 2005 ElectronicElectronic DiscoveryDiscovery JuneJune 28,28, 20122012

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• Rule 26(a) Initial Disclosures

20 ObtainingObtaining EdiscoveryEdiscovery

•• Rule 33 interrogatories

• Rule 34 document request

• Rule 36 requests for admission

• Depositions

• Rule 45 non-party subpoenas

21 RuleRule 3434 DocumentDocument RequestsRequests

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24 Cost-ShiftingCost-Shifting

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In Re Fannie Mae 552 F.3d 814 (D.C. Cir. January 6, 2009) (OFHEO spent more than $6 million or 9% of its total annual operating budget)

27 PrivilegePrivilege IssuesIssues 29 UsingUsing ESIESI atat TrialTrial UsingUsing ESIESI atat TrialTrial

• Admissibility

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31 FailureFailure IsIs NotNot anan OptionOption

32 IsIs thatthat All?All?

33 Questions?Questions?

CharlesCharles W.W. CohenCohen HughesHughes HubbardHubbard && ReedReed LLPLLP OneOne BatteryBattery ParkPark PlazaPlaza NewNew York,York, NYNY 1000410004 (212)(212) 837-6856837-6856 [email protected]@Hugheshubbard.com

34 Susan Buckley PARTNER 212.701.3862 Phone 212.378.2166 Fax [email protected] Cahill Gordon & Reindel LLP Eighty Pine Street New York, NY 10005-1702

Susan has extensive experience litigating communications law matters, especially those involving the rights of the press. During the course of her career, she has successfully represented journalists and media entities in cases concerning a wide variety of issues affecting the media, including the prior restraint doctrine, press access issues, the reporter’s privilege and the protection of confidential sources and has defended journalists and media clients in defamation and privacy cases, copyright matters and litigation challenging governmental efforts to restrict newsgathering activities. Her clients have included the four major broadcast networks, The New York Times, Time Inc., HBO, the Hearst Corporation, Business Week, CNN, Court TV, NY1, local broadcasters, motion picture distributors, music distributors, cable program suppliers and other publishers of newspapers and magazines. Susan is named among the top litigators in New York by Chambers USA, The Legal 500 and Euromoney's Benchmark Litigation.

TAKING AND DEFENDING DEPOSITIONS

I. INTRODUCTION

This outline is organized in two sections. The first addresses issues that you should consider in preparing to take a deposition; the second addresses tips for the defender.

But in a very real sense, the preparation needed to either take or defend a deposition is quite similar even though the role of counsel during the deposition itself is quite different. In either role, preparation is the key.

II. TAKING DEPOSITIONS

A. Preliminaries

1. Should You Take It At All?

A deposition is one of the most important discovery devices permitted by the

Federal Rules. Depositions provide the only opportunity for spontaneous questioning of witnesses under oath before trial and provide an important opportunity to evaluate the demeanor and credibility of witnesses who will be testifying for your adversary. They are an indispensable tool in the litigator’s arsenal, but they come at some cost.

Depositions are expensive; add videotaping and they are more so. And, the number of depositions is, in the absence of a court order or written stipulation of the parties, limited to ten (10) per side. See Fed. R. Civ. P. 30 (a)(2)(A)(i). You must choose wisely.

Bear in mind that depositions preserve all testimony, including harmful testimony that the

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other side might never have obtained. This is an important consideration when considering the depositions of non-party witnesses.

Some depositions must be taken to preserve testimony (i.e. the elderly eye witness to the accident). Others must be taken simply because of their importance to the case

(i.e. your adversary’s principal witnesses at trial). Others must be taken because they are outside the reach of a trial subpoena and (unless the witnesses are extremely cooperative) are beyond your ability to command their appearance at a trial.

2. Come Up with a Plan

Given the presumptive limit on the number of depositions you may take, it is critical to come up with a deposition plan before your first notice of deposition or your first subpoena is served. But leave some flexibility. There may be witnesses that you have to depose that you will not be able to identify in the early stages of a litigation. You should have a multi-stage plan.

Give considerable thought to the sequence of depositions you want to take. Do you want to depose the head of the company first or last? Do you want to depose the witness with the most detailed knowledge of the facts sooner rather than later? The witnesses you depose first will usually be far less prepared about your case and your goals than the witness you depose last because the very process of taking depositions reveals a lot about your own strategy.

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You cannot make a sensible judgment about which witnesses you want to depose or the sequence in which you would prefer they be taken without a thorough knowledge of the facts and a thorough knowledge of your client’s relevant documents and the documents produced by your adversary.

Seriously consider whether your case lends itself to taking depositions under

Federal Rule 30(b)6 which requires a corporate defendant or other entity to produce one or more persons to respond to specific areas of inquiry outlined in your deposition notice. See

Pt. II(B)1 infra. It is an invaluable and time-saving tool.

B. Applicable Federal Rules

There are rules to govern just about all of the mechanics of a deposition — the who, what, when, where, how, how many and how long. See Fed. R. Civ. P. 26, 30, 32, 45.

1. Who May Be Deposed

Rule 30(a)(1) permits a deposition “of any person, including a party, without leave of court.” You will need leave of court to take the deposition of someone who has already been deposed in the same action. If you don’t know the name of the knowledgeable witness for a corporation or other entity, Rule 30(b)(6) allows you to describe the witness by title or category, e.g., the chief financial officer. If you are seeking a deposition pursuant to

Rule 30(b)(6), the notice of deposition must “describe with reasonable particularity the matters for examination.” The corporation or other entity must then “designate one or more of-

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ficers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Be vigi- lant about enforcing your rights under Rule 30(b)6. Don’t let a 30(b)6 witness get away with saying that someone else at the company would have more knowledge than he on a certain subject; if he has been proffered on the topic, he is required to have gathered the facts within the company’s knowledge.

Rule 45 permits the depositions of non-parties and has substantially simplified the process for subpoenaing such witnesses. If your case is in the Southern District of New

York, by way of example, you may nonetheless issue a subpoena to a witness in any district throughout the United States (although you will generally issue the subpoena out of the district where the witness is located). The subpoenaed party can challenge the deposition subpoena and challenge or object to a subpoena for the request for documents on the grounds set forth in Rule 45. See Fed. R. Civ. P. 45.

2. When May You Take a Deposition?

Rule 30(a)(2)(A)(iii) provides that a deposition may be taken at any time after the initial Rule 26(f) conference has been conducted, unless your notice certifies that the deponent is about to leave the United States and will be unavailable if you wait until after the conference. See Fed. R. Civ. P. 30. There is no rule-mandated “priority” of depositions. See

Fed. R. Civ. P. 26(d)(2). In unique circumstances, you can seek to obtain permission to take a deposition before filing a Complaint. See Fed. R. Civ. P. 27(a).

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You must give reasonable notice of the time and place of any deposition you are taking. The Federal Rules do not define what length of time is reasonable. However,

Rule 32(a)(5) suggests that 14 days’ notice is not unreasonable. Local rules and case law in individual districts often shed light if there is a question.

3. Where Should the Deposition Take Place?

Depositions of opposing party witnesses customarily take place at the examining lawyer’s office (on the theory that her documents are there; it is her deposition; etc.) but these matters are often negotiated for the convenience of witnesses and/or counsel. Non-party witnesses subpoenaed pursuant to Rule 45 are required to be deposed no more than 100 miles from the place where the witness resides, is employed or regularly transacts business. See

Fed. R. Civ. P. 45.

4. What may the deposition cover?

The scope of a deposition may be as broad as Rule 26 allows. You may seek not only evidence that is “relevant to any party’s claim or defense” but anything that is reasonably calculated to lead to the discovery of admissible evidence. You may ask the witness to speculate, to give a legal conclusion, and to respond to a hypothetical question even though such testimony may not ordinarily be admissible at trial.

5. How may the deposition be conducted?

Although stenographic means remains the norm for recording the deponent’s testimony in most cases, under Rule 30(b)(3) the recording may be done by audio or audio-

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visual means as well. Videotaping depositions has become much more common (and can be terribly effective for impeachment purposes at trial). The deposition notice must state the method that will be used to record the testimony. Whether or not to videotape a deposition is an important tactical decision; it is also quite expensive. If you expect the witness to be extremely evasive, if you expect the testimony to be explosive or if you simply know that you will be forced to introduce large portions of the deposition at trial, videotaping may well be worth the extra expense.

The parties may stipulate, or the court may on motion order, that the deposition be taken by telephone or other remote means. See Fed. R. Civ. P. 30(b)(4).

Questioning of the witness generally proceeds as it would at a trial under the

Federal Rules of Evidence. See Fed. R. Civ. P. 30(c)(1).

6. How many depositions?

Unless the parties agree or the court orders otherwise, there is a presumptive limit of ten depositions per side. See Fed. R. Civ. P. 30(a)(2)(A)(i).

7. How long?

Rule 30(d)(1) limits the length of a deposition to one day of seven hours; the court “must allow” additional time “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”

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C. Preparing To Take A Deposition

1. Familiarizing Yourself with the Procedural Rules

Review the applicable Federal Rules of Civil Procedure (Rules 26, 30, 32 and

45). Identify and review applicable evidentiary rules that will likely arise in the context of this deposition. Learn the Local Rules of the district court and the Individual Rules (if any) of the judge to whom your case is assigned.

2. Familiarizing Yourself with the Substantive Law and the Facts

You cannot begin to prepare for a deposition if you are not completely familiar with the substantive legal issues in the case and have mastered the relevant facts. When possible, you should review all relevant documents produced in the case and documents otherwise available to you. Do computer and internet searches to gather additional information about the witness. Obtain any prior testimony the witness has given where appropriate.

3. Identifying Your Goals for the Deposition

As noted above, depositions may be taken for any one of a number of reasons.

Generally speaking, if you are taking the deposition of a party opponent your goal is most often to learn as much information as you can, pin the witness down for trial and obtain useful admissions. On the other hand, if you are taking the deposition of a witness who will not testify at trial (such as a third party witness with knowledge of only limited facts helpful to you), your goal might be to preserve very specific trial testimony in admissible form without conducting a free-ranging exploration of everything the witness knows about the events. Some-

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times you might even take a deposition to educate the opposing party as to just how good your case is for purposes of encouraging settlement discussions. The point is you must have a clear idea in your own mind why you are taking this deposition, what you are trying to accomplish and what, if anything, you are not trying to accomplish.

4. Preparing a Witness File and a Deposition Outline

Devise a way to organize your thoughts and your materials for the deposition.

Preparing both a witness file and a deposition outline can be immeasurably useful for the deposition itself and for later use in preparing for trial. Be very broad in compiling your witness file. Include documents the witness wrote, saw or should have seen and documents that you want him to see. Include relevant documents that you have no intention of showing the witness. This is your file. When the file is complete, decide which documents you may wish to mark at the deposition and arrange them in a logical order.

A deposition outline should be as thorough as possible. It is generally not helpful to write out the questions you intend to ask (spontaneity is lost and it tends to chill relevant follow-up), but you likely will want to write down some specific questions especially if they are technical or need to be quite precise. If you are taking a deposition to establish an evidentiary basis for the admissibility of certain documents (say, as business records), jot down all the elements that you need to establish in your outline to ensure that you cover them all. Reference relevant documents in your outline and devise a system that lets you mark them efficiently.

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D. Procedural Steps And Logistics

If you are taking the deposition of a party opponent, you will need to serve a

Notice of Deposition within a reasonable time. The notice (a sample of which is attached as

Exhibit 1) must comply with the requirements of Rule 30. If you are taking the deposition of a non-party witness, you will need to serve a notice of deposition and a notice of subpoena on your adversary (often combined; sample attached as Exhibit 2) and you will need to serve a subpoena on the witness. See Fed. R. Civ. P. 45; subpoena form available on the S.D.N.Y. website.

You are the host of the deposition (if you will). If you think of it that way, you will remember to arrange for a room for the deposition, a court reporter to transcribe the deposition, and a videographer (if you have determined to videotape the deposition). You should also ensure that you have enough copies of documents you intend to mark as exhibits at the deposition to provide them to counsel for the witness and other attending counsel.

E. Taking The Deposition

1. The So-Called “Standard Stipulations”

Be wary. The “standard stipulations” vary from place to place and from lawyer to lawyer. And many of the most common are incorporated in the Federal Rules. In any event, it is always better clearly to recite what stipulations are being agreed to at the outset of the deposition.

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2. The Court Reporter

Within the first fifteen minutes of the deposition, ask the court reporter to read back a question and answer to ensure that the transcription is accurate. If the court reporter is having difficulty, you need to know that sooner rather than later.

3. Ask Your Questions and Listen

Proceed through your deposition outline in an orderly fashion. Above all, listen to the answers the witness is giving you and follow-up on those answers. The most common mistake inexperienced lawyers make in conducting depositions is not to listen to what is being said by the witness. Use broad ranging questions when you are trying to elicit all the information the witness knows. You can always track back and parse it out. Keep the deposition moving and, if possible, conversational. If you get a terrific answer to a question and your adversary has proffered a good objection to its form, go back and correct the form and try to get the answer again (mindful of the risk that the answer could change). Be mindful of your time constraints and have a plan as to what points can be dropped and what points simply can’t be in completing your examination.

4. Going "Off the Record"

At times it may be useful to go “off the record” to diffuse a particular problem or to work out some confusing lack of communication that has arisen. Be aware that your adversary may well then recite “on the record” any discussions held “off the record.”

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5. Dealing With Obstructive Adversaries

Rule 30(c)(2) provides in pertinent part that:

“An objection [during a deposition] must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to preserve a motion under Rule 30(d)(3).”

And Rule 30(d)(2) provides that a court may impose sanctions on a person “who impedes, delays or frustrates the fair examination of the deponent.”

Lawyers have been sanctioned for disruptive objections and interjections, instructing witnesses not to answer, conducting “private consultations” with the witness, suggesting answers to witnesses through “speaking objections” and for abusive language and demeanor.

See e.g., Morales v. Zondo, Inc., 204 F.R.D. 50 (S.D.N.Y. 2001); Skywark v. Isaacson, 1998

WL 647201 (S.D.N.Y. 1998); Phillips v. Manufacturers Hanover Trust Co., 1994 WL

116078 (S.D.N.Y. 1994); Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 292 (S.D.N.Y.

1987).

Normally, patience and stern recitations of the Federal Rules are all that are needed to rein in an obstructive adversary. Most lawyers know (or should know) that in more recent years, courts have taken a stricter view of the kind of conduct that is permissible during the course of a deposition.

If you are expecting an overly aggressive adversary, do a little research and arm yourself with citations to rulings in the applicable district concerning disruptive behavior. But if

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your deposition gets out of hand, be wary of letting your opponent’s behavior influence your own conduct; if both parties contribute to a deposition’s obstruction, a court may deny sanction requests, as well as embarrass all involved. See, e.g., T.Z. v. City of New York, 2008 WL

544707, at *5 (E.D.N.Y. Feb. 26, 2008).

6. Communications with the Court/Magistrate

You will need to be familiar with the court’s practices about seeking a ruling during the course of the deposition. E.D.N.Y. Local Civil Rule 37.3(b) expressly provides that if a dispute during a deposition cannot be resolved by counsel, counsel shall “to the extent practicable” notify the Court by telephone and seek a ruling while the deposition is in progress. There is no similar rule in the Southern District. If it is the practice of the judge or magistrate to be amenable and available, try to defer the issues for one phone call.

III. DEFENDING DEPOSITIONS

A. Preliminaries

1. What does “defending a deposition” mean?

“Defending a deposition” is a misnomer. You're not really “defending” anything. You are preparing your client for her deposition, representing your client at her deposition, preserving objections for trial and assuring that no privileges are waived. If the deponent is not your client, you are simply “attending and cross-examining” (and objecting if it is in the interest of your client to do so).

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2. Why is it so important?

Aside from your client’s testimony at trial, it is his most important moment in the case. Consider how the deposition can be used and is likely to be used. Will it be vide- otaped or not? There are few things more damaging at trial than your client’s being confront- ed with prior inconsistent testimony. Especially on videotape. And it is usually the only opportunity your adversary will have to size up your client and elicit wide-ranging information from your client.

3. Your Job vs. Your Adversary's Job

Your job is even harder than your adversary’s job. You have to do all that she is doing to prepare and more. The difference is that your job is 75% over when you walk in the deposition room.

B. Preparing Yourself To Defend A Deposition

1. Familiarizing Yourself with the Procedural Rules

See Pt. II(C)(1).

2. Familiarizing Yourself with the Substantive Law

Just as you cannot begin to take a deposition without being familiar with all of the substantive legal issues in the case, you cannot begin to prepare your client for a deposition if you are not completely familiar with the substantive legal issues. Part of your job will

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be to explain legal principles to your client where appropriate in the course of preparing your witness.

3. Learning the Facts

It is your job to be the master of the relevant facts. Presumably you will already have a good idea about what your client knows (through initial interviews, preparation of pleadings or discovery responses) and you will have a memorandum or some other record already summarizing the facts about which your client is knowledgeable. You should also review all relevant documents produced in the case or otherwise available to you. Do computer and internet searches where appropriate. Obtain any prior testimony given by your client. But be careful not to confuse what you know with what the witness knows.

4. Placing Your Witness in the Overall Context of the Case

In a complex commercial case, some witnesses will have wide-ranging knowledge of relevant facts; some will have knowledge about a smaller universe of facts; some will know very little about the universe but an awful lot about isolated facts. It is your job to know the whole picture, place your witness in that picture and come to a view as to how the witness fits in to the larger context of the case. This will help drive your decision making about how best to prepare your witness.

5. Identifying Your Opponent's Goals for the Deposition

After preparing yourself on the law and the facts, take some time to identify what your adversary will likely be doing to prepare for this deposition and hoping to accom-

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plish through this deposition. This will help you to identify likely areas of inquiry, to identify documents that you may wish to show the witness and to prepare the witness for substantive questioning. Ask yourself what you would be hoping to accomplish if you were taking the deposition and prepare the witness accordingly.

6. Identifying Your Goals for the Deposition

It is often said that there is not much in it for you. That is generally true.

There certainly is no huge potential upside; there is a huge potential downside. But the fact that there is not a huge potential for gain does not mean that you have no goal other than getting out alive. If the witness is going to be your principal story-teller at trial, for example, you might prepare him quite differently than you would a more minor player.

7. Preparing a Witness File and a Topic Outline

Organize your thoughts and your materials for the witness preparation sessions. Preparing both a witness file and a topic outline is critical for both deposition preparation and for later use in preparing for trial. Be very careful in making decisions as to what documents you will show your witness as the very fact of your doing so will likely make them discoverable.

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C. Witness Preparation

1. Scheduling Preparation Sessions

Plan and schedule your preparation sessions with ample time before the scheduled deposition. Several shorter sessions are far better than a few long ones. Preparation time will vary but generally speaking, it will likely take longer than you first anticipated.

2. Explaining the Deposition Process and the Deposition Preparation Process

Most clients know nothing about the deposition process or the deposition preparation process. It is your task to explain both in a straight-forward, confident and non- legalistic way. Give a general overview of the status of the case, describe what a deposition is and how it can be used, stress why it is not your client’s opportunity to shine. Discuss privilege issues and explain to the witness why she should not discuss the matter with others.

3. What You Want and What the Witness Wants

Most witnesses approach the deposition preparation process wanting to learn about “technique.” By and large you approach the deposition preparation process wanting to learn in more detail what the witness knows about the facts and how the witness can best ar- ticulate that knowledge. Explain this to your client giving him an idea about how you intend to proceed. Find out what his concerns are. Use this opportunity to emphasize that telling the truth is his most important guide.

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4. Determine Whether the Witness Has Relevant Documents

Review again how your client maintains files, stores information, retrieves information. You have likely done this already but often you will learn of additional documents that you have not seen before. Don’t forget computer drives, other forms of electronic documents, diaries, calendars and phone records.

5. Preparing the Witness on the Facts and the Law

Proceed topic by topic through your outline showing the witness documents he must see and those that you have decided he should see. Above all, listen. Emphasize throughout that the goal is to give short, truthful, responsive answers to the questions asked.

Be sure not to skip background questions in preparing your client. Don’t assume. Take careful notes to enter on your outline later. Ask very broad questions in your fact-finding role but be sure to establish a means to convey to the witness when you are shifting to role-playing.

Educate the witness on broad legal principles and alert him to particular legal buzzwords.

When you finish a topic, take the time to role play. Be sure to give feedback in a concise and consistent fashion. Repeat the process topic by topic.

6. Preparing the Witness on Deposition Technique

Although most witnesses want to “learn” how to answer questions, they already know how to do that. What they don’t know is how to take the time to formulate a concise and precise response. And what they don’t know is the difference between what they know and what they’ve heard, what they know and what they assume and what they know

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and what they think they should know. One of your principal tasks is to educate the witness as to these differences. Here are other points that you will want to discuss with your client about technique:

 Explain that a deposition is neither a conversation nor a test. Silences do not beg to be filled.

 Educate your witness as to what to expect from opposing counsel both in terms of substance and style.

 Illustrate ways that opposing counsel may try to intimidate the witness.

 Go over hypothetical questions.

 Reassure him that it is perfectly fine to say “I don't know” or “I don't recall” if he doesn’t. Discuss how to respond to requests for information easily accessible to opposing counsel that the witness has not committed to memory.

 Explain your role during the deposition. Explain objections and instructions. Persuade the witness that it is in his interest to listen to you.

 Prepare him for routine questions that lawyers tend to ask about the deposition preparation process.

 Anticipate any privilege or privacy problems in advance and arrive at a plan that the witness understands to deal with them.

 Talk to him about talking to you. When it is permissible. When it is forbid- den. When it is mandatory. See Pt. III (D)(5), infra.

 Caution him to avoid humor and sarcasm.

 Tell him to guard against small talk. Get in and get out.

 Drive home that he should never answer a question he doesn’t understand.

 Explain that he shouldn’t volunteer (and why) and try to point out examples of his doing so during your role playing.

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 Discuss his demeanor. It is never his job to be the bad guy.

7. Setting the Scene

Because one of your goals is to prepare your witness for the entire deposition experience, you should be sure to describe the “scene”. Explain the role of the court reporter.

Describe who else is likely to be there (including the adverse party and, in some circumstances, other witnesses). Explain where the players will sit, what exhibits are, how they are marked. Discuss with the witness what, if anything, he should bring. (Usually nothing, not even his appointment book or calendar.)

8. The Mock Deposition

Conduct a mock deposition with your witness. This is only very rarely a bad idea. Persuade a colleague to play the role of opposing counsel. And really do it.

D. The Deposition Itself

1. The Logistics

For the comfort of your witness, it never hurts to try to see if your adversary will agree to take the deposition in your offices. Never offer to have the deposition take place in your client’s office. In the usual case if you are defending the deposition, the opposing counsel is responsible for arranging for the court reporter. It’s his deposition after all.

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2. Stipulations

As to the so-called standard stipulations, see Pt. II(E)(1), supra. From a defender’s perspective, it is perfectly acceptable to agree to reserve all objections except as to form until the time of trial. Without such a stipulation, Rule 32(d)(3) alone would control which provides that “[a]n objection to a deponent’s competence — or to the competence, relevance, or materiality of testimony — is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”

Note, however, that the rule does not preserve all objections, just those as to “competence, relevance or materiality”; and even as to those, the objection is not preserved if the ground for it might have been corrected at the time of the deposition. Under the Federal Rules, objections as to form are waived if not made at the deposition. See Fed. R. Civ. P. 32(d)(3)(B).

Objections to other “errors and irregularities”, including a party’s conduct, or objections to matters that “might have been corrected at that time” are waived if not made as well. See Fed

R. Civ. P. 32(d)(3)(B). In addition to agreeing on any stipulations concerning objections, you also need to make clear at the outset of the deposition that the witness does request the opportunity to correct and sign the deposition. See Fed. R. Civ. P. 30(e).

3. The Court Reporter

See Pt. II(E)(2), supra.

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4. Objections and Instructions

The Federal Rules (see Fed. R. Civ. P. 30(c)), many local rules and decisional law have made it clear that you are not permitted to obstruct the deposition or coach the witness through your objections. That does not mean you are a potted plant. You must object to questions in improper form and other questions if your objection could be cured at the time if you do not want to waive the objection. And it is perfectly appropriate, for example, to object to harassing questions, questions calling for speculation, repetitive questions, “off the wall” questions and the like. The Federal Rules require that objections be stated “concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30(c)(2). Generally you are not permitted to instruct a witness not to answer a question unless the question is in violation of a limiting order of the court or would reveal privileged information. Sanctions can be imposed on any attorney (or deponent) who impedes, delays or otherwise engages in conduct that “frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2).

5. Other Communications Between You and Your Client

An issue that has gained considerable attention in recent years is the extent to which you are permitted to communicate with your witness during the actual questioning and during breaks. Many courts now have rules (or decisions) precluding the attorney for the witness from initiating a conference with the witness during the taking of the deposition (except for determining whether a privilege should be asserted). See Local Civil Rule 30.4 (S.D.N.Y. and E.D.N.Y.). Generally speaking (but there are district courts that take a stricter view) your witness may initiate a conference with you. Some district courts have held that counsel repre-

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senting the witness cannot speak to the witness about the deposition at all once it begins (except to preserve privilege), even during breaks or at lunch. Therefore, you must first educate yourself as to the applicable procedure in the district and educate your client about how and when it is permissible for him to speak with you. Generally speaking, if a privilege issue aris- es, not only must your client consult with you if there is a question, but you may consult with him if you are concerned that privileged information is being sought or is responsive to a particular question.

6. Going “Off the Record”

See Pt. II(E)(4), supra. Caution your client that he should not engage in discussions “off the record” unless clearly instructed to do so by you.

7. Breaks/Lunch/Fatigue

Take breaks during the deposition. It is a difficult process and your witness will lose focus. If your client becomes overly fatigued, consider suspending the deposition.

Break for lunch.

8. Communications with the Court/Magistrate

See Pt. II(E)(6), supra. If there is a question as to whether to continue the deposition at all, Rule 30 permits you to suspend the deposition for the time necessary to move for an order from the Court to terminate or limit the scope and manner of the taking of the deposition on the ground that the examination is being conducted in bad faith or so as to un-

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reasonably annoy, embarrass or oppress the deponent or a party. Fed. R. Civ. P. 30(d)(3). If the judge or the Magistrate will hear you at the time, that is usually the best course.

9. Cross or No Cross

Whether to conduct any cross-examination generally depends largely on whether the witness will likely testify at trial. In any event, if there is something that cries out for clarification, then clarify it.

10. Concluding the Deposition

When the deposition is over, say so. Excuse the witness immediately. Be sure that an appropriate procedure is in place to deal with the custody of original exhibits.

E. After The Deposition

1. Correction and Signature

Ensure that your client reads, corrects and signs the deposition in a timely fashion.

Susan Buckley June 2012

EXHIBIT 1

Susan Buckley CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

[INSERT NAME OF PLAINTIFF],

Plaintiff,

v. NOTICE OF DEPOSITION [INSERT NAME OF DEFENDANTS]

Defendants. No. [Insert Case No.]

PLEASE TAKE NOTICE that, pursuant to Rule 30 of the Federal Rules of Civil

Procedure, plaintiff [insert name of plaintiff] will take the deposition of [insert name of party deponent] on July 26, 2012, at 9:00 a.m., at the offices of Cahill Gordon & Reindel LLP, 80 Pine

Street, New York, New York 10005. The deposition shall be taken before a notary public or

other officer authorized by law to administer oaths. The testimony to be given at the deposition

shall be recorded by a certified shorthand reporter and a videographer. You are invited to attend

and cross examine the witness.

CAHILL GORDON & REINDEL LLP

By: ______Susan Buckley 80 Pine Street New York, New York 10005 Tel. (212) 701-3000 Fax. (212) 269-5420 [email protected]

Attorneys for Plaintiff

Dated: June 25, 2012 New York, New York

To: [Opposing Counsel]

EXHIBIT 2

Susan Buckley CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

[INSERT NAME OF PLAINTIFF],

Plaintiff,

v. NOTICE OF DEPOSITION AND [INSERT NAME OF DEFENDANTS] SERVICE OF SUBPOENA Defendants. No. [Insert Case No.]

PLEASE TAKE NOTICE that, pursuant to Rules 30 and 45 of the Federal Rules of Civil Procedure, plaintiff [insert name of plaintiff] will take the deposition of [insert name of witness] on August 15, 2012 at 9:00 a.m., at the DeSoto Hilton Hotel, located at 15 East Liberty

Street, Savannah, Georgia 31401. The deposition shall be taken before a notary public or other officer authorized by law to administer oaths. The testimony to be given at the deposition shall be recorded by a certified shorthand reporter and a videographer. You are invited to attend and cross examine the witness.

PLEASE TAKE FURTHER NOTICE that, pursuant to Rules 30 and 45 of the

Federal Rules of Civil Procedure, plaintiff [insert name of plaintiff] will serve a subpoena (a true and correct copy of which is attached hereto) on [insert name of witness] demanding that she ap-

pear for an oral deposition on August 15, 2012, at the DeSoto Hilton Hotel, located at 15 East

Liberty Street, Savannah, Georgia 31401.

Dated: June 23, 2012 New York, New York

CAHILL GORDON & REINDEL LLP

By: ______Susan Buckley 80 Pine Street New York, New York 10005 Tel. (212) 701-3000 Fax. (212) 269-5420 [email protected]

Attorneys for Plaintiff

To: [Opposing Counsel]

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Veronica Rendón is a partner in the Arnold & Porter’s securities enforcement and litigation practice. Ms. Rendón specializes in commercial litigation with a focus on securities, professional liability, and financial transactions. Ms. Rendón has a broad base of experience, and has successfully defended class action litigations, accountant and auditor liability matters, partnership disputes, minority shareholder disputes, insider trading investigations and litigations, internal investigations, corporate takeover disputes, and fraud and breach of fiduciary duty actions. As a result of her engagements, Ms. Rendón regularly appears in federal district court, Delaware Court of Chancery, state court and commercial divisions. She has also successfully mediated and arbitrated matters in a number of different forums, and worked through large, complex settlements to finality. Ms. Rendón has also defended investigations conducted by the Securities and Exchange Commission, the Department of Justice, and other federal agencies, as well as the New York Attorney General’s office, the Public Company Accounting Oversight Board and the AICPA.

Overview of Discovery Methods and Motions

June 28, 2012

Veronica E. Rendon Arnold & Porter LLP 399 Park Avenue New York, New York 10022 (212)715-1165 [email protected]

I. INTRODUCTION

A. Goals:

1. Obtain persuasive, admissible evidence to help win the case;

2. Avoid surprise at trial; and

3. Act as promptly, efficiently and inexpensively as possible.

B. Advance planning is essential.

II. OPENING PRINCIPLES

A. Have a purpose.

B. Focus your discovery.

C. Recognize some facts are more important than others, but the most important facts typically are the hardest to obtain.

D. Be dogged and make sure you obtain all the documents and information you need and are entitled to obtain.

E. Recognize that objective evidence is the most credible:

1. Documents.

2. Non-party witnesses.

3. Admissions from party witnesses.

III. LEGAL ANALYSIS – SUBSTANTIVE AND PROCEDURAL

A. Effective discovery calls for legal analysis and factual development.

B. Be rigorous and precise in identifying the essential elements of all claims and defenses.

1. Research any applicable statutes.

2. Review all relevant case law.

3. Consider referring to pattern jury instructions.

C. Ask yourself how to dispose of the case. For example:

1. Can you make a motion for summary judgment? If so, focus your discovery.

2. Can you obtain an early settlement by exposing “bad” facts in discovery?

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IV. FINDING FACTS AND EXPLORING ALTERNATIVES TO FORMAL DISCOVERY

A. Relevant facts are everywhere. You don’t necessarily need formal discovery to obtain relevant, admissible evidence. Try informal discovery.

B. Informal discovery is fast and cheap; does not preserve harmful evidence; and you do not have to tell the other side you have obtained it.

1. Witnesses come and go. Make sure important witnesses will be at trial. If there is any doubt, take their depositions to preserve their testimony.

2. Even if the witnesses will be available, be sure to memorialize the testimony in some form.

C. Elements of Informal Discovery

1. Interview your clients again and again.

2. Visit the scene.

3. Explore non-party sources of information, private and public, and seek them out.

4. Use the internet and computerized databases.

5. Consider using private investigators.

6. Former employees can be very effective. Seek them out. There is not necessarily a bar to your interviewing them.

V. FORMAL DISCOVERY

A. “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . .” Fed. R. Civ. P. 26(b)(1).

B. Additional points

1. “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1).

2. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Thus, you may seek to discover both hearsay and speculation.

3. Rule 26(b)(2) permits the Court to narrow the scope of discovery:

a. if the discovery sought is unreasonably cumulative or duplicative, or if it is obtainable from some other source that is more convenient, less burdensome or less expensive;

b. if the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

c. if the burden or expense of the proposed discovery outweighs its likely benefits, taking into account the needs of the case, the amount in

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controversy, the parties’ resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.

C. Initial (“Automatic”) Disclosures.

1. Fed. R. Civ. P. 26(a)(1).

2. Contents of initial disclosure.

a. Witnesses – the name, the address and telephone number of each individual likely to have discoverable information that may be used by the disclosing party in support of its claims or defenses. Disclosing party must identify the subject of the information, unless a witness is to be used solely for impeachment.

b. Documents – a copy or a description of all documents in the disclosing party’s possession, custody or control that the disclosing party may use to support its claims or defenses, unless such document is to be used solely for impeachment.

c. Damages Computation – a computation of any category of damages claimed by the disclosing party, making available for inspection and copying under Rule 34 all documents and evidentiary material not privileged or protected from disclosure on which that computation is based.

d. Insurance Information – for inspection and copying as under Rule 34 any insurance agreement which may subject an insurer to liability to satisfy part or all of any judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

3. Exceptions to initial disclosure rule Fed. R. Civ. P. 26(a)(1)(B):

a. an action for review on an administrative record;

b. a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;

c. an action brought without counsel by a person in custody of the United States, a state or a state subdivision;

d. an action to enforce or quash an administrative summons or subpoena;

e. an action by the United States to recover benefit payments;

f. an action by the United States to collect on a student loan guaranteed by the United States;

g. a proceeding ancillary to proceedings in other courts; and

h. an action to enforce an arbitration award.

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4. Timing.

a. The disclosures must be made at or within 14 days after the Rule 26(f) conference, unless a different time is set by stipulation or court order.

b. A party may object to initial disclosures at the Rule 26(f) conference and the court will rule on objections and set time for disclosures.

c. A party first served or joined after the Rule 26(f) conference must make disclosures within 30 days, unless a different time is set by stipulation or court order.

d. A party is not excused from making its disclosures because another party has not made its disclosures.

5. Signature requirement.

a. A party’s initial disclosure must be in writing and signed by the disclosing party’s attorney of record, or if the party is unrepresented, the unrepresented party must sign the disclosure. Fed. R. Civ. P. 26(a)(4).

b. The signature of an attorney or party with respect to the initial disclosure constitutes a certification that to the best of the signer’s knowledge, information and belief “formed after reasonable inquiry, the disclosure is complete and correct as of the time when it is made.” Fed R. Civ. P. 26(g).

6. Sanctions for Failure to Comply.

a. Failure to make initial disclosure in accordance with Rule 26(a)(1) may give rise to sanctions, and orders of preclusion in accordance with the provisions of Rule 37 of the Federal Rules of Civil Procedure. See Advisory Committee Notes to the 2000 amendments, Rule 26(a)(1).

b. Failure to make reasonable inquiry, or providing disclosure that is not reasonably believed to be complete or correct may result in sanctions pursuant to Rule 11.

7. Supplements to Initial Disclosures.

a. Parties are required to supplement their initial disclosures, pursuant to Rule 26(e)(1).

b. Local Civil Rule 26.1 requires the address of a party and the original owner of an assigned claim to be furnished within five days after a demand.

D. Interrogatories.

1. Tactical considerations.

a. Interrogatories can be prepared quickly and inexpensively. They can be used to explore legal theories and contentions, to identify and locate witnesses and to establish predicate facts, such as names, dates and

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numbers. They also can be used to obtain your adversary’s computation of damages alleged.

b. The utility of interrogatory answers can be undercut by lawyer-drawn responses.

c. Interrogatories generally are not useful for eliciting the details of events.

d. Can be delayed by objection and evasive answers.

2. Key Rules.

a. Fed. R. Civ. P. 33.

b. Rule 33 limits the number of interrogatories. “[A]ny party may serve upon any other party written interrogatories not exceeding 25 in number, including all discrete subparts. . . .”

c. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2).

d. Interrogatories may not be served before the time specified in Rule 26(d) without leave of court.

e. Timing – 30 days to respond unless extended by court order or stipulation.

f. Rule 33(d) gives the option to produce business records.

(1) Use when the answer to an interrogatory may be derived or ascertained from business records and the burden of deriving or ascertaining the answer is substantially the same for both parties.

(2) It is a sufficient answer to specify the records from which the answer may be ascertained.

g. Local Rule 26.3 contains uniform definitions for use in discovery requests. These include definitions of “communication,” “document,” “identify (with respect to persons),” “identify (with respect to documents),” “parties,” “persons,” and “concerning.”

h. Local Rule 33.1 – Answering interrogatories by reference to records:

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(1) Specifications of documents to be produced shall be in sufficient detail to permit the interrogating party to locate and identify the records.

(2) Producing party must make available any computerized information or summaries thereof.

(3) Producing party must also provide any relevant compilations, abstracts or summaries, unless these materials are privileged or immune from discovery.

(4) Documents shall be made available for inspection within ten days after service of the answers to interrogatories.

i. Local Civil Rule 33.2 sets forth special standard procedures for discovery in prisoner pro se actions.

j. Additional Southern District Rule 33.3 – Additional limitations on certain types of interrogatories:

(1) Unless otherwise ordered by the court, at the commencement of discovery, interrogatories will be restricted to those seeking names of witnesses with knowledge of information relevant to the subject matter of the action, the computation of each category of damage alleged and the existence, custodian, location and general description of relevant documents, including pertinent insurance agreements, and other physical evidence, or information of a similar nature.

(2) During discovery, interrogatories other than those seeking information described in paragraph (a) above may only be served (i) if they are a more practical method of obtaining the information sought than a request for production or a deposition, or (ii) if ordered by the court.

(3) At the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, interrogatories seeking the claims and contentions of the opposing party may be served unless the court has ordered otherwise.

3. Alteration of Presumptive Limits.

a. The court in a specific case may, on its own initiative, or on motion for a protective order under Rule 26(c), alter the presumptive limits on depositions and interrogatories based on an analysis of whether:

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(1) The discovery sought is unreasonable, cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive;

(2) The burden or expense of the proposed discovery outweighs the likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the important of the issues at stake in the litigation and the importance of the proposed discovery in resolving issues.

E. Document Requests.

1. Tactical considerations.

a. Document requests are essential in every case, but are particularly critical in commercial cases.

b. Serve document requests early and as often as necessary to ensure production of all relevant documents.

c. Be wary of your opponent’s objections and attempts to negotiate the extent of production.

d. Look as hard for the documents that don’t (or no longer) exist as you do for the documents that do exist. At the start of the case, call on the other side to preserve all documents. Follow up on all categories of documents that should be there, but are not. Ask for record retention policies.

e. When you get the documents, read them, organize them, and read them again.

f. Carefully consider electronic discovery.

2. Key Rules.

a. Fed. R. Civ. P. 34.

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(1) The request shall set forth, either by individual item or by category, the items to be inspected and shall describe each with reasonable particularity.

(2) The party upon whom the request is served shall serve within 30 days after the service of the request a written response. “The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objections shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts.”

(3) A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

b. Local Rule 26.3 contains uniform definitions for use in discovery requests. These include definitions of “communication,” “document,” “identify (with respect to persons),” “identify (with respect to documents),” “parties,” “persons,” and “concerning.”

F. Inspections of Property.

1. Tactical Considerations.

a. These are useful in a wide range of cases – environmental, product warranty or liability, landlord-tenant, nuisance, personal injury.

b. If a property inspection will be useful, it probably will make sense to retain an expert.

c. Coordinate the inspection with the retention of the expert.

2. Key Rules.

a. Fed. R. Civ. P. 34(a)(2).

(1) A party may ask for “entry upon designated land or other property in the possession or control of the party upon whom the request is served.”

(2) Permitted purposes: “Inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object. . . .”

G. Physical and Mental Examinations.

1. Tactical considerations.

a. Examinations are in order whenever a party has put his physical or mental condition in issue. This need not be in a personal injury action. If a party has claimed emotional distress – for example, in an employment case – a mental examination will be in order.

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2. Key rules.

a. Fed. R. Civ. P. 35. – The party requesting the physical or mental examination is required to deliver to the opposing party a copy of the written report of the examiner if such a request is made by the opposing party. The examining party is then entitled upon request to receive from the opposing party the report of any similar examination that the opposing party conducted.

H. Depositions Upon Oral Questions.

1. Tactical considerations.

a. They are the only discovery device in which a witness (rather than a lawyer) must give an immediate response, and the examiner may follow up immediately with genuine cross-examination. Thus, depositions are the most effective means of forcing a party to confront the weaknesses in his or its case.

b. But depositions are expensive and time-consuming, they reveal your theories of the case, and (in the case of non-party depositions) they can preserve harmful testimony.

c. Some depositions cannot be avoided: If a key witness may not be available for trial, you must take the deposition. Also, in all likelihood, you will want to take the depositions of the opposing party’s key trial witnesses.

d. Think about ways to limit the number of depositions. For example, consider stipulating with your opponent that the two sides will depose only those witnesses who will testify at trial.

2. Key rules.

a. Fed. R. Civ. P. 30.

(i) Under Rule 30(a)(2)(A), without leave of court or written stipulation, no more than ten depositions can be taken by the plaintiffs or the defendants.

(ii) Rule 30(d)(2) establishes a presumptive time limit in the taking of depositions of one day for seven hours.

(iii) Rule 26(b)(2), in conjunction with Rule 30(d)(2), permits the court to allow additional time for a deposition if needed “for a fair examination of the deponent” or because circumstances impeded or delayed the examination.

(iv) Rule 30(b)(6) permits the examiner to compel a corporate or organizational party to designate an individual witness to testify on its behalf concerning subject areas that the examiner designates.

b. Local Civil Rules of the Southern and Eastern Districts of New York:

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(i) Local Rule 30.1: Counsel fees on distant depositions – If the deposition takes place more than 100 miles from the courthouse, the court may order that prior to the examination, the applicant must pay the expenses of the attendance of one attorney for each adversary party.

c. Additional Eastern District rules:

(i) Local Rule 30.3: Telephone depositions – The motion of a party to take the deposition of an adverse party by telephone will presumptively be granted.

(ii) Local Rule 30.4: Persons attending depositions – A person who is a party in the action may attend the deposition of a party or witness.

(iii) Local Rule 30.5: Deponents lacking personal knowledge – Where an officer, director or managing agent of a corporation or a government official is served with a notice of deposition or subpoena regarding a matter about which he or she has no knowledge, he or she may submit reasonably before the date noticed for the deposition an affidavit to the noticing party so stating and identifying an individual having knowledge of the subject matter.

(iv) Local Rule 30.6: Conference between deponent and defending attorney – An attorney for a deponent shall not initiate a private conference with the deponent during the actual taking of a deposition except for the purpose of determining whether a privilege shall be asserted.

(v) Local Rule 30.7: Document production at depositions. A party seeking production of documents of another party in connection with a deposition should schedule the deposition to allow for the production of documents in advance of the deposition.

I. Depositions Upon Written Questions.

1. Tactical Considerations.

a. They allow you to get discovery out of state in a way that is relatively convenient and inexpensive.

b. But you cannot cross-examine or follow up with the witness in any other way. As a result, you cannot control the witness.

c. They are most useful in connection with document subpoenas to examine custodians and to establish the foundations for admissibility.

2. Key Rules.

a. Fed. R. Civ. P. 31.

(i) This kind of deposition counts toward the presumptive limit on the number of depositions.

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(ii) The questions must be served with the notice of deposition.

(iii) Other parties may then serve cross-questions.

(iv) The original examiner may then serve re-direct questions.

J. Requests for Admission.

1. Tactical considerations.

a. When answered fairly, they can narrow issues and expedite the trial. But they often are not answered fairly.

b. Don’t expect admissions on ultimate facts and legal conclusions, or on anything close to them. Focus on more basic, predicate facts.

c. They also can be used to eliminate issues concerning the admissibility of documents and other evidence.

2. Key rules:

a. Fed. R. Civ. P. 36: A party may serve a written request for admission, for purposes of the pending action only, of the truth of any matters, including the genuineness of documents

VI. SEQUENCING

A. Conventional wisdom: Serve fact interrogatories first. Then pursue document requests, depositions, contention interrogatories and requests for admissions.

B. Alternatives:

1. Use contention interrogatories and requests for admissions early to flesh out the opponent’s pleading and to narrow the issues. (But note the restrictions in the Local Rules of the SDNY.)

2. Take depositions early to obtain admissions and to pin down the story before the witnesses and their lawyers can prepare.

3. With depositions, the conventional approach is to depose the peripheral witnesses before the key witnesses. But think about reversing that order – again, to cross-examine the key witnesses before they are fully prepared.

C. Seizing (or ceding) priority:

1. Conventional wisdom: Priority of depositions is important. But unlike with the CPLR, the Federal Rules do not provide a method for ensuring priority.

2. In practice, you can try to gain priority by being the first to serve notices, but depositions typically are alternated.

3. And there can be disadvantages in taking a deposition first: You may not be able to question a witness about an event or issue on which the opponent is focusing and you had not.

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D. Out-of-state and non-party depositions:

1. Recognize that they can take longer to obtain and that you may have less control over the process.

2. Start the process early, regardless of when you might otherwise want to obtain discovery from these witnesses.

VII. DRAWING ON THE COURT’S RESOURCES

A. Preliminary conferences:

1. Under Rule 26(f), an initial discovery conference is mandatory. In fact, without leave of court, no deposition may be taken until the conference is held. View this conference as an opportunity, not just as a burden.

2. Go into the conference with your discovery plan in mind, and press for it. Know how long you will need to complete discovery, know which depositions you will want to take, and know the other devices you will want to use.

3. During discovery, take advantage of your right to request a conference.

B. Resolving Discovery Disputes.

1. Avoiding the need for judicial intervention.

a. Preparation and knowledge of the rules.

b. General principle of reasonableness.

c. Conference requirement.

(i) Rules 26(c) and 37(a)(2): certification that movant had made good-faith effort to resolve the dispute without judicial intervention.

(ii) Local Rules.

Southern District: Local Rule 37.2 – Conference with court before formal discovery motion (but see individual judges’ rules for exceptions).

(A) Eastern District: Local Rule 37.3(a) – Conference between counsel before seeking judicial resolution.

2. Informal methods of dispute resolution.

a. At the initial pre-trial conference.

(i) Fed. R. Civ. P. 16(b), (c)(6), (8).

(ii) Local Rules and practice.

(A) Eastern District: Local Rule 72.2: automatic reference of non-dispositive pretrial matters to magistrate judge

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“assigned” at commencement of action, except for those actions set forth in Local Rule 16.1.

(B) Southern District: no corresponding rule; “designation” of magistrate judge at commencement of action; orders of reference in some cases; formulation of discovery plan at initial pre-trial conference, whether conducted by district judge or magistrate judge.

b. Disputes arising during depositions.

(i) Eastern District: telephone conference with magistrate judge (see Local Rule 37.3(b), (d)).

(ii) Southern District: no corresponding rule; practice varies with individual judges.

c. Other types of discovery disputes.

(i) Eastern District: telephone conference or “letter briefs” (see Local Rule 37.3(c), (d) – The parties in dispute will notify the court either by telephone conference or by letter not exceeding three pages in length outline the nature of the dispute.

(ii) Southern District: no corresponding rule; practice varies with individual judges; general preference for formal submissions of various kinds.

3. Formal motion practice.

a. Motions to compel/motions for protective orders.

(i) Rules 37(a), (d); 26(c), Fed. R. Civ. P.; see also Rule 6.

(ii) A party, for good cause, may seek an order to protect a party from discovery that causes annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c).

(iii) In order to make this motion, the movant must first confer or attempt to confer in good faith with the other parties in an attempt to resolve the discovery dispute without court intervention. Id.

(iv) A motion for protective order must contain a certification that the movant has conferred, or has attempted to confer in compliance with this good faith conference obligation. Id.

(v) Upon a showing of good cause, the court in which the action is pending, or the district court of the jurisdiction where a deposition in being conducted, may enter an appropriate protective order, containing the following nonexclusive types of relief as set forth specifically in Rule 26(c):

(A) That the disclosure requested not be had;

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(B) That the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time and place;

(D) That certain discovery matters be limited or delayed;

(E) That no one be present during the discovery conducted, except the specific persons designated by the court;

(F) That a deposition transcript, after being sealed, can only be opened by order of the court;

(G) That trade secrets be kept confidential, and that research, development and commercial information not be revealed except in designated ways; and

(H) That the parties simultaneously file sealed documents or information to be opened by the court.

(vi) If any part of the motion for a protective order is denied, the court can compel discovery and the movant may be held responsible for expenses and sanctions pursuant to Rule 37(a)(4), which is specifically cross-referenced with Rule 26(c).

(vii) Local Rules.

(A) Local Rules 6.1 through 6.4: motion practice (see also individual judges’ rules regarding oral argument if any, return date, etc.).

(a) Local Rule 6.1: Service and Filing of Motion Papers.

(b) Orders on Motions.

(d) Computation of Time.

(B) Local Rule 37.1: verbatim quotation of interrogatories, requests for admissions, and objections or exceptions.

(i) Fed. R. Civ. P. 37(b), (c), (d), (g).

(ii) Local Rules

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(a) 5.1, 6.1, 37.1, 37.2, 37.3, discussed above.

(b) 83.9: governs contempt proceedings in civil cases under Fed. R. Civ. P. 37(b)(1) and (b)(2)(D).

(iii) Sanctions under Rules 37(a)(4)(A), 37(b) and 37(c) are mandatory. Avoid this risk by informal resolution of discovery disputes.

(iv) Review of magistrate judge’s discovery orders.

(a) Fed. R. Civ. P. 72(a).

(b) Local Rules: none.

VIII. PLANNING FOR DEFENSE.

A. The aim is to eliminate surprise.

B. Put yourself in your opponent’s shoes.

C. Conduct informal discovery of your own witnesses.

D. View the other side’s discovery requests as an opportunity to gain insight into its theory of the case.

E. At the start of the case (or even earlier), make sure that your side preserves all documents. Keep reminding your clients about this. Search for all the same documents – before your opponent does.

F. Know your rights and exercise them.

G. Discovery is largely a negotiation. Seek to obtain something in return for everything that you give.

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