Tag Archives: civil procedure

Rule 68 does not moot case

In Emily Diaz v. First Am. Home Buyers Protection Corp., No. 11-57239 (9th Cir. Oct. 4, 2013), the 9th Circuit Court of Appeals ruled that an offer of judgment (Rule 68) did not make a plaintiff’s case moot.  This is an important case because it provides guidance when considering when to file summary judgment when a Rule 68 offer has been made.

Rule 68 is when a party offers opposing party a judgment for full satisfaction that the opposing party could recover at trial.  In this case, First American offered $7,019.32 plus costs.  Diaz, the plaintiff, declined this offer.  Thereby the issue was whether offering the money made the lawsuit moot.

The 9th Circuit Court of Appeals held that the First American’s offer, even if it fully satisfied the plaintiff’s claim, did not make the case moot.  When reaching this conclusion the 9th Circuit cited Kagan’s dissent in Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528-29 (2013).

‘[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ By those measures, an unaccepted offer of judgment cannot moot a case.   When a plaintiff rejects such an offer – however good the terms – her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer – like any unaccepted contract offer – is a legal nullity, with no operative effect.”

Id. at 1536 (citation omitted).

via Courthouse News Service.

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Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26’s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30’s and 31’s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34’s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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The Sedona Conference®

Electronic discovery and electronic stored information are very important topics for everyone – employes, law firms, lawsuits, etc.  The Sedona Conference should be the first step you take when trying to get a better handle in the area of electronic discovery and electronic stored information.

I bring to your attention the website that lists all of the Sedona Conference’s publications.

Recently, the Sedona Conferenced uploaded its post-comments publication in the area of proportionality of costs.  This is an important publication because the proportionality of costs will influence who pays for the costs of discovery and what is a reasonable request.  In other words, defining what is an undue burden and expense.

Publications | The Sedona Conference®.

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FTC can serve foreign defendants via Facebook

FTC v. PCCARE Inc., 12 civ-7189 (S.D.N.Y. Mar. 3, 2013) is a very strange case because it shows how service of process might be altered and in what circumstances.  In this case, the FTC wanted to be able to serve documents other than the Summons and Complaint via Facebook or e-mail.  The Southern District of New York granted this request.

This is a very strange case.  Generally, the Hague Service Convention has guidelines detailing how abroad defendants may be served.  The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.

So why could you serve documents a foreign defendant over Facebook?

The court explained that “A court in this district has held that the Hague Service Convention only applies to the initial service of process, not subsequent documents.”  See SEC v. Credit Bankcorp., Ltd., 2001 WL 666158, *4 (S.D.N.Y. Feb 14, 2011).  In addition the court relied on Federal Rule of Civil Procedure 4(f)(3), whereby it stated,

a Court may fashion means of service on an individual in a foreign county, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.”  SEC c. Anticevix, 2009 WL 361739, at *3 (S.D.N.Y. Fec. 13, 2009).

The court reasoned that federal courts need to keep an open mind about technology.

The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means.  But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.

via FTC can serve foreign defendants via Facebook, federal judge rules – ABA Journal.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against 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.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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District of Minnesota amendments to Local Rules

Starting on July 23, 2012, the United States District Court for the District of Minnesota’s amendments will come into play.  Most of these amendments are stylistic.  However, there are a couple of substantive changes.

As of note, this summary is intended only as a summary of these changes.  This summary is not exhaustive. The summary is not intended to be legal advice on the rules.

 

The amendments for the Local Rules are as follows:

Local Rule 1.3, Sanctions

The language was amended in accordance with the restyling process.  In addition, LR 1.3 now specifies that it applies to “an attorney, law firm, or party.”

 

Local Rule 3.1, Civil Cover Sheet

The language was amended in accordance with the restyling process.

Local Rule 4.1, Service

The language was amended in accordance with the restyling process.

Local Rule 4.2, Fees

The language was amended in accordance with the restyling process.Subsection (a)(2) replaced the phrase “motion for permission to proceed in forma pauperis” with the actual title of the form from the clerk’s office, “application to proceed in district court without prepaying fees or costs.”

Subsection (a)(2) deleted the sentence “If permission to proceed in forma pauperis is later denied, the complaint shall be stricken.”  The District Court explained that “if the court denies a party’s application to proceed without prepaying fees or costs, the court gives the party an opportunity to pay those fees or costs before the court strikes the party’s complaint.”

Local Rule 5.3,  Time for Filing After Service

The language was amended in accordance with the restyling process.

Local Rule 5.5, Redaction of Transcripts

The language was amended in accordance with the restyling process.

The new subsection (f) reflects the substance of the last sentence of former subsection (b).  Subsection (f) states “The court does not review transcripts to assess whether personal identifiers should be redacted.  Attorneys and unrepresented parties must do so themselves.”

Local Rule 6.1, Continuance

The language was amended in accordance with the restyling process.

Local Rule 7.1, Civil Motion Practice

The language was amended in accordance with the restyling process.

LR 7.1 was reorganized to add subsections (a) Meet and confer requirement, and (d) Motions for Emergency injunctive relief

Under subsection (a), parties must meet and confer before filing any civil motion, except a TRO, and file a meet and confer statement with the motion.  Parties must file a joint stipulation if parties agree on the resolution of all or part of the motion after the meet and confer statement is filed.

Under subsections (b) and (c), the District Court clarified that parties should file motions and supporting documents simultaneously.  In addition, the method of calculating deadlines has been changed.  Deadlines are now based on the filing date of the moving party’s motion and supporting documents, rather than on the hearing date.  Parties also now have 14 days to prepare a reply brief for a dispositive motion rather than the 7 days previously provided.

Subsection (b)(4) identifies types of motions that are considered nondispositive:  (i) motions to amend pleadings; (ii) motions with respect to third party practice; (iii) discovery-related motions; (iv) motions related to joinder and intervention of parties; and (v) motions to conditionally certify a case as a collective action.

Subsection (c) was amended to reflect the different practices of district judges.

Subsection (d) was added to provide guidance on filing motions for emergency injunctive relief.

Subsection (e) was amended to clarify that after filing a timely post-trial or post-judgement motion, the moving party must contact the judge’s calendar clerk to obtain a briefing schedule.

Local Rule 9.3,  Standard forms for habeas corpus petitions and motions by prisoners

The language was amended in accordance with the restyling process.

Local Rule 15.1, Amended pleadings and motions to amend

The language was amended in accordance with the restyling process.

Local Rule 16.1, Control of Pretrial Procedure by Individual Judges

The language was amended in accordance with the restyling process.  In addition, the language regarding ADR was moved to 16.5.  The language requiring parties to consider the use of ADR was removed because it was addressed in LR 26.1 and Forms 3-4.

Local Rule 16.2, Initial Pretrial Conference and Scheduling Order

The language was amended in accordance with the restyling process.

The previous language in (a) was moved to LR 26.1 regarding the initial pretrial conference.

Subsections (c) and (d)(2) were added to specify that issues related to confidential or protected documents must be addressed at the initial pretrial conference and may be addressed in the scheduling order.

Subsection (d)(3) clarifies the nature of discovery deadlines.  The language states, “The discovery deadlines… are deadlines for completing discovery, not for commencing discovery.  To be timely, a discovery request must be served far enough in advance of the applicable discovery deadline that the responding party’s response is due before the discovery deadline.”

Local Rule 16.3, Modification of a Scheduling Order

The language was amended in accordance with the restyling process.

The changes to subsections (a) and (b) are intended to clarify for parties that they cannot simply stipulate to a change in a scheduling order.  Instead, parties must move to modify a scheduling order.

Local Rule 16.4, Case Management Conference

The language was amended in accordance with the restyling process.

Local Rule 16.5, Alternative Dispute Resolution and Mediated Settlement Conference

The language was amended in accordance with the restyling process.

The rule was amended to emphasize that a mediated settlement conference is not required in certain actions.

The time limit (which previously required a mediated settlement conference to be held within 45 days prior to trial) was eliminated.  Subsection (b) states that the mediated settlement conference must occur before trial (except in a proceeding listed in Fed.R.Civ.P. 26(a)(1)(B)).

Other subsections were amended to conform to the language of the Alternative Dispute Resolution Act, 28 USC 651-658.

Local Rule 16.6, Final Pretrial Conference

The language was amended in accordance with the restyling process.

Subsection (b) clarified that although parties must be prepared to discuss the listed subjects, if some of the subjects are not relevant in a particular issue, the court is not required to discuss them.

Subsection (b)(13) clarified that the final pretrial conference can embrace any subjects identified in the relevant provisions of the Federal Rules of Civil Procedure.

Local Rule 16.7, Other Pretrial Conferences

This section was abrogated as redundant.

Local Rule 17.1, Settlement of Action or Claim brought by Guardian or Trustee

The language was amended in accordance with the restyling process.

Local Rule 23.1, Designation of “Class Action” in the Caption

The language was amended in accordance with the restyling process.

Local Rule 26.1, Conference of the Parties Under Fed.R.Civ.P. 26(f); Report; Protective Orders

The language was amended in accordance with the restyling process.

The new subsections (a) and (b) clarify the parties’ obligations to meet and confer and file a report (Form 3 or 4).  Forms 3 and 4 were revised.

The new subsection (c) was added to require the parties to address whether a protective order is necessary and incorporates reference to Forms 5 and 6.

Local Rule 26.2, Form of Certain Discovery Documents

 

This local rule was abrogated.  It was considered unnecessary due to the direction provided in LR 37.1.

Local Rule 26.3, Disclosure and Discovery of Expert Testimony

 

This local rule was abrogated.

Local Rule 26.4, Filing of Discovery Documents

 

This local rule was abrogated.

Local Rule 37.1, Form of Discovery Motions

The former LR 37.1 was abrogated.  LR 37.2 was renumbered was LR 37.1.

The language was amended in accordance with the restyling process.

This rule was amended to require parties to meet and confer before filing any motion, and to file a meet and confer statement with the motion.

Local Rule 37.2,

 

It was renumbered was LR 37.1 after the former LR 37.1 was abrogated.

Local Rule 38.1, Demand for a Jury Trial

The language was amended in accordance with the restyling process.  The rule now instructs parties that they may demand a jury trial either by the method prescribed in LR 38.1 or by any other method that complies with Fed.R.Civ.P. 38(b).

Local Rule 54.3, Time Limit for Motions for Award of Attorney’s Fees and for Costs other than Attorney’s Fees

 

The language was amended in accordance with the restyling process.

Local Rule 72.2, Review of Magistrate Judge Rulings

The language was amended in accordance with the restyling process.

The new subsection (d) clarifies that the format and filing requirements apply to objections and responses to objections filed under this rule in all cases, whether civil or criminal.

via United States District Court – District of Minnesota.

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