federal rules of civil procedure refresher

NEWBIE LITIGATION SCHOOL, PART 1 2016FEDERAL RULES OF CIVIL PROCEDURE

Premier Date: September 28, 2016

Premier Date: September 28, 2016

FEDERAL RULES OF CIVIL PROCEDURE

NEWBIE LITIGATION SCHOOL, PART 1 2016

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 2


meet the facultyPANELISTS

Reena Bajowala Jenner & Block, ChicagoMatt Cannon Greenberg Traurig, ChicagoMelissa Visconti Damian & Valori, Miami FL

MODERATOR Robert Michaels,

Robinson Curley & Clayton P.C.


Practical and entertaining education for business owners and executives, accredited

investors, and their legal and financial advisors. For more information, visit

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NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

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about this webinar

What procedures govern federal civil litigation? This session will address the basics. We will cover venue and jurisdiction, pleading requirements, affirmative defenses and counterclaims, discovery, dispositive motions, pre-trial and trial practice.


about this seriesThis series is aimed at attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to introduce different components of litigation in the order they generally occur, beginning with the basic rules of civil procedure and continuing through discovery, dispositive motions, and working with experts. The series is best viewed as a whole, building from one session to the next, and then segueing into a second series in early 2017 covering the next phase of litigation (rules of evidence, trial, appeal, and post-judgment enforcement/collection).


episodes in this series

EPISODE #1 Federal Rules of Civil Procedure Refresher 9/28/16

EPISODE #2 Discovery Practice 10/19/16

EPISODE #3 Dispositive Motions 11/16/16

EPISODE #4 Working With Experts 12/7/16

Dates above are premier dates; all webinars also available on demand


• We will focus on providing a practical overview at each of the major stages envisioned by the FRCPs:

• General concepts

• Before the case is filed

• Starting the case

• Short-circuiting the case

Just the essentials, please


• Discovery• E-discovery

• Upcoming changes

• Social media

• Death of “notice pleading?”

Just the essentials, please


• Case management

• “Proportionality”

• Cooperation among parties in discovery

• Electronically Stored Information (“ESI”)

• Preservation• Spoliation

New FRCPs Dec. 2015


•Rule 1: a “just and speedy resolution” of the case

• Job of the court and the parties

•Probably just aspirational, but beware

General concepts


• Has there been a “triggering event?” See FRCP 26(f)(3)(C)

• Key: preserve Electronically Stored Information (“ESI”)

• Rule 37(e)(2): being put on notice of a claim. “The sound of gunfire.”

Before the case is filed

•Examples:

• Conversations about a potential lawsuit

• Letter from an opposing counsel

•Notice letter to an insurance carrier

• Claims filed with a regulator

13


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• The litigation hold notice is probably privileged, but there are exceptions:

• Kinds of ESI the client was instructed to preserve and collect

• Specific actions the client was instructed to take

• Spoliation probably narrows the privilege



• Rule 4 (m): upcoming reduction in time to serve -- down from 120 days to 90

• Court “must” dismiss• “Good cause” extension

• Early Case Management conference under Rules 16 and 26• Rule 16(b)(1): “direct simultaneous communication”

Starting the case


• ECM scheduling order

• Rule 16(b)(2): Earlier of 90 days after any defendant has been served (down from 120 in earlier version of the rule) or 60 days after any defendant has appeared

• FRCP 26(d)(2): early delivery of discovery prior to meet and confer

• Facilitate focused discussion

Starting the case cont’d


• ECM scheduling order typically addresses:

• Rule 16(b)(3)(B)(iii): preservation issues regarding electronically stored information (“ESI”)

• Rule 16(b)(3)(B)(iv) and FRE 502 -- procedures for dealing with “inadvertent” production of privileged information



• Key: don’t go to court unless you have exhausted yourself and your opposing counsel talking about ESI issues

• If you can’t agree with opposing counsel, seek judicial guidance “promptly” under FRCP 37(e)



• Technology assisted review• E.g.: predictive coding

• Almost all courts are saying “yes”

• Rule 26 Committee Note: “[c]ourts and parties should be willing to consider” using reliable computer-based methods of searching ESI



• Removal (and remand)

• “Domicile” (an intent to remain) is key for individuals

• LLPs and LLCs -- every member counts

• Corporations -- “nerve center”

• Where does the company really make its decisions

Short-Circuit No. 1


• Notice of removal is not a form• A substantive pleading

• Amount in controversy• Can be challenged in the removal notice and later

• Multiple defendant cases -- time for removal

Short circuit No. 1 cont’d


• Class Action Fairness Act• You can remove with “minimal diversity” if amount in controversy is

over $5 million

• Courts split over whether “local defendant” can remove

• Discovery is permissible

Short Circuit No. 1 cont’d


• “Specificity” of allegation

• “Plausibility”

• Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

• Iqbal v. Ashcroft, 566 U.S. 662 (2009)

Short Circuit No. 2: FRCP 12(b)(6)


• Conclusory (notice?) allegations are not sufficient:

• Attorney General Ashcroft was the architect of a discrimination plan against Muslims

• Facts must be specific enough to show that the complaint is plausible enough to give relief

Short Circuit No. 2: FRCP 12(b)(6) cont’d


• Rule 12(b)(2) – it’s back

• Internet jurisdiction

• “directed at a particular state”• Internet ad alone likely is insufficient• “Click throughs”

Short Circuit No. 3: Personal Jurisdiction


• The “new” concept of “proportionality” under FRCP 26(b)(2)(C)(iii):

• Applies at all stages of a case

• What is the importance of the issues at stake in the action

• What is the amount in controversy

• The parties’ relative access to relevant information

Discovery


• The importance of discovery in resolving the issues• Whether the burden or expense of the discovery outweighs

its likely benefit

• Basically, “proportionality” applies when you agree its relevant but disagree on what it will or should cost to get it

Discovery cont’d


• FRCP 34 -- objections to interrogatories now must be specific

• You are required to state whether any responsive materials are being withheld on the basis of an objection

• Doesn’t have to be a log but must give a general sense of what isn’t being produced

Discovery cont’d


• Rule 30(b0(6) -- notice must describe the topics with “specificity”

• Key: prepare your witness or be prepared for trouble

Discovery cont’d


• Requests to admit• Don’t be afraid to file an RTA on the ultimate issues in the

case

Discovery cont’d


• No “Facebook privilege:” there is no general right of privacy that protects a party from producing

• If using a work computer, no privacy at all

• “Settings” are irrelevant re intent to maintain privacy: the point of social media is to share information

Discovery and Social Media


• Sham affidavits and declarations (contradicting earlier statement in a deposition) are inadmissible for purposes of a SJ motion. Exceptions:

• Refreshed recollections, minor inconsistencies, etc.

• Tolon v. Cotton, 134 S.Ct. 1861 -- you don’t get SJ just because the case is weak

• Don’t forget about partial SJ

Short-circuit No. 4: FRCP 56


• What makes a court more likely to grant SJ?

• Dispositive question of law

• Missing evidence on a require element• E.g., Celotex

Short-circuit No. 4: FRCP 56 cont’d


• FRCP 11 – Keeping things fair and honest.• What does it say: by signing a paper filed with the court, the

attorney certifies (1) it is not being presented for an improper purpose; (2) the claim, defense or argument is warranted by existing law or by a “nonfrivoulous” argument to extend, modify, reverse existing law or for establishing new law; (3) the factual contentions have or will have evidentiary support “after a reasonable opportunity for further investigation or discovery; (4) the denials of contentions are warranted by the evidence or are reasonably based on belief or lack of information

• Requires “an inquiry reasonable under the circumstances…” • That means, you need to look into the facts and arguments

before presenting to the Court.

Be Honest – It Should Be Obvious


• FRCP 8(b) governs the requirements for filing an answer.

• Admit, deny, or lack of knowledge or information sufficient to form a belief about the truth of an allegation. Those are your options.

• But, admitting part of an allegation and denying the remainder

is appropriate.

How to Respond to a Complaint


• FRCP 8(c) covers affirmative defenses. • Generally, these are affirmative matters that defeat some or all of plaintiff’s claims.• Although affirmative defenses are often pled in a mechanical fashion, be careful.• Judge Shadur of the Northern District of Illinois has held: “Rule 8(c) and the caselaw

applying it call for a responding party to accept a complaint’s allegations as true, while then explaining why defendant is assertedly not liable or perhaps is liable for less than plaintiff claims--see also App’x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). But it does not advance the ball for the responding party to voice generalized ADs that do not provide the type of notice pleading that is incumbent on federal defendants as well as federal plaintiffs.”• What does this mean – Judge Shadur, like some of his peers, have applied the

Ibal/Twombly complaint pleading standard to affirmative defenses.

What About Affirmative Defenses?


• FRCP 72 governs appealing a Magistrate’s decision.• Objections must be filed with the District Court within 14 days of the Magistrate’s

decision. • FRCP 72(a) states that “[t]he district judge in the case must consider timely objections

and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” See also 28 U.S.C. § 636(b)(1)(A) (review of Magistrate Judge’s decision on pretrial matters subject to “clearly erroneous or contrary to law” standard).

• A decision by a magistrate judge is clearly erroneous only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Fish v. Hennessy, 12 C 1856, 2012 WL 3643829 at *2 (N.D. Ill. Aug. 22, 2012) (J., Kendall) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) and United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). “When performing clear error review, the district court should not overturn a decision by the magistrate judge merely because the district judge would have independently come to a different conclusion from the one reached by the magistrate judge on the same set of facts.” Fish, 2012 WL 3643829 at *2.

What If You Disagree With a Magistrate?


Rule 26(a)(1) – Without awaiting a discovery request:

Contact info. for “individual likely to have discoverable information”

Copies—“or a description by category and location”—of documents and ESI that you may use to support your claims or defenses.

Computation of each category of your damages

Insurance agreements

When: Within 14 days after Rule 26(f) conference unless a different time is set by stipulation or court order.

Lesson: Plan ahead!

Initial Disclosures


TWO KINDS OF EXPERTS

Professional experts—i.e., “retained or specially employed” for expert testimony or employees who regularly give expert testimony.

• Must give a written report

Experts whose information was not acquired in preparation for trial. Examples are employees not specifically employed on the case or experts who were actors/viewers of events (e.g., treating physician)

• Must disclose subject-matter of testimony and summary of the facts and opinions to which the witness is expectedto testify

Check Fed. R. Evid. 702, 703, 705

Expert Disclosures


Rule 26(a)(2)(B) lists contents of report:(i) a complete statement of all opinions the witness will express and the basis and reasons for them;(ii) the facts or data considered by the witness in forming them;(iii) any exhibits that will be used to summarize or support them;Also: qualifications and publications, prior cases for four years, and compensation

Expert reports must be “detailed and complete.” Rule 26, Adv. Comm. Notes, 1993 Amend.“The report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.” Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998).

Written Reports


Rule 26(e) and Rule 37

Parties are required to supplement or correct disclosures, interrogatory answers, requests for production, or requests for admission.

In a “timely manner”

Failure to disclosure or supplement

Rule 37(c)(1): Exclusion is automatic “unless the failure was substantially justified or harmless”

Further Sanctions:

Payment of the reasonable expenses, including attorney’s fees, caused by the failure;

Inform the jury of the party's failure; and ...

Supplementing & Exclusion


Issue sanction: directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

Preclusion: prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

Striking Pleadings: striking pleadings in whole or in part;

Staying Action: staying further proceedings until the order is obeyed;

Death Penalty: Dismissal, or default judgment

Rule 37 (b)(2)(A) Sanctions


Rule 26(b)(5)(A) –

Party must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Asserting Privilege/Work Product


Example


• Local Rules

• Judge’s Individual Rules

• Local Counsel

• O’Connor’s Federal Rules, Civil Trials

• Wright & Miller’s Federal Practice & Procedure

• Federal Civil Rules Handbook

Resources!

More About The Faculty D

ROBERT [email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge.



Reena Bajowala [email protected]

Reena R. Bajowala is a partner in the firm’s Complex Commercial Litigation Department and a member of the Class Action, Technology Litigation, Consumer Law, ERISA Litigation and Labor and Employment practice groups. She represents corporations in significant disputes involving relationships with their employees, customers and business partners.

Ms. Bajowala is an experienced trial attorney who defends manufacturers, online and brick-and-mortar retailers, technology companies, automotive industry clients and government defense contractors in matters that deal with consumer law, technology outsourcing disputes, employment relationships and benefit plans. Ms. Bajowala regularly counsels and defends employers and service providers in federal actions involving ERISA-governed plans, post-employment obligations and employee classification. She also counsels corporate boards and executives on a variety of areas of concern, including conflicts of interest, fiduciary duties, benefit plan exposure, IT and benefits outsourcing arrangements and technology policy.



MATT [email protected]

Matthew J. Cannon is a Shareholder at Greenberg Traurig in Chicago. He has almost two decades of criminal and civil litigation experience. He has served as the First Chair in numerous federal jury trials and has combined his courtroom skills, his experience as a federal prosecutor with the Department of Justice (DOJ), and his wide-ranging civil litigation skills into a practice that combines anti-corruption compliance work and litigation. Matt focuses his practice on representing companies and individuals subject to government investigations and litigation. He also assists companies with implementing and assessing anti-corruption compliance programs throughout the world, including programs focused on the Foreign Corrupt Practices Act (FCPA) and the U.K. Bribery Act. Matt’s criminal and civil investigations and litigation experience includes handling matters related to the False Claims Act (with an emphasis on representing defense contractors and health care providers) as well as matters involving DOJ and SEC FCPA investigations, antitrust matters, ITAR, criminal and civil environmental investigations, class action securities fraud litigation, derivative and corporate governance breach of fiduciary duty matters, and multi-state attorney general investigations involving cybersecurity breaches.

Matt’s combination of civil and criminal experience is recognized by The Best Lawyers in America, in which he is listed in the 2015-2016 editions for both Criminal Defense: White-Collar and for Qui Tam Law (False Claims Act/whistleblower matters). Prior to joining Greenberg Traurig, Matt served as a federal prosecutor for more than seven years. During his tenure with the government, he served as both the Supervisory AUSA for the Headquarters Office of the Central District of Illinois and was the Lead Prosecutor for the LOGCAP Working Group—a group that prosecuted warzone corruption matters related to the multibillion-dollar LOGCAP III and IV prime contracts awarded to private contractors to provide logistical support to the U.S. Army in relation to the military conflicts in Iraq, Kuwait and Afghanistan. The LOGCAP Working Group had numerous prosecutions and investigations involving bribes, kickbacks, Major Fraud Act, and civil False Claims Act matters, including qui tams. © 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 48

More About The Faculty

D

MELISSA [email protected]

Melissa Visconti is Of Counsel at Damian & Valori LLP in Miami. She is an experienced trial and appellate lawyer who has appeared in state and federal courts across Florida and around the country. Ms. Visconti is Of Counsel to the Firm and focuses her practice in the areas of state and federal court appeals, complex litigation, and receiverships. Ms. Visconti has extensive experience in state and federal appeals courts, as well as in the areas of products liability, whistleblower and False Claims Act cases, securities, multidistrict litigation, and class action litigation. She is also experienced in criminal law, advising clients who are the subjects of or material witnesses in federal and state investigations.

Ms. Visconti is a graduate of Princeton University (B.A. 1990) and the University of Miami School of Law (J.D., magna cum laude, 1995), where she was an officer on the Moot Court Board and a recipient of the Order of the Coif. Ms. Visconti served as a law clerk for Judge Ursula Ungaro of the United States District Court for theSouthern District of Florida.

During her nearly eleven years as an Assistant United States Attorney, Ms. Visconti investigated and prosecuted cases involving major crimes, immigration, international arms smuggling, and matters of national security. She conducted numerous jury trials in the United States District Court for the Southern District of Florida and successfully handled cases before the United States Eleventh Circuit Court of Appeals. In recognition of her outstanding performance as a prosecutor, Ms. Visconti received the Attorney General’s Award for matters of national security and was named federal prosecutor of the year by the Miami Dade County Chiefs of Police.

Ms. Visconti is a member of the Florida Bar and is admitted to practice in the U.S. Courts of Appeals for the Third and Eleventh Circuits, and the U.S. District Courts for the Southern District of Florida and the Eastern District of Pennsylvania.



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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.