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Civil Litigation Management Manual, Second Edition, from the The Judicial Conference of the United States Committee on Court Administration and Case Management2010

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Civil Litigation Management ManualSecond Edition

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

2010This manual is for the guidance of judges. It is not intended to be relied upon as authority, and it creates no rights or duties

COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENTOF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

Julie A. Robinson, Chair Richard J. Arcara John D. Bates Marcia A. Crone Aida M. Delgado-Colon Gregory L. Frost Julio M. Fuentes July 2010

James B. Haines, Jr. Daniel L. Hovland Robert J. Johnston Benson Everett Legg Ronald B. Leighton Steven D. Merryday Amy J. St. Eve

This is the second version of the Civil Litigation Management Manual, approved by the Judicial Conference of the United States at its March 2010 session. This revised version was prepared under the direction of the Judicial Conference Committee on Court Administration and Case Management. The original version, prepared in 2001, captured the most effective practices developed by courts in implementing the pilot programs and plans required under the Civil Justice Reform Act of 1990. Under the Acts mandate, the judiciary was required to develop, and periodically update, a manual to describe and analyze litigation management, cost and delay reduction principles and techniques, and alternative dispute resolution programs considered most effective. 28 U.S.C. 479(c). This version retains the foundation of the original version and suggests additional practices for handling todays litigation. For instance, since 2001, electronic case management is now the norm under the Case Management/Electronic Case Files system, and electronic discovery is commonplace. This version addresses those realities. It also encourages judges to tailor case management to the specific needs of the case so that, where appropriate, a judge can ensure that the cost and complexity of a case relates closely to the nature and size of the claims. As in the original version, the manual contains over 200 pages of forms in Appendix A. These forms were submitted by district and magis-

trate judges across the country as examples of methods to manage every stage of a civil case. The forms have been updated by many of the same judges who provided the original forms for the first version of this manual, and the Committee thanks those judges for their time and contributions. The Committee is also grateful to both the Administrative Office and the Federal Judicial Center for supporting the Committee in this project and for their substantial contributions. Finally, this version will be available primarily electronically on the judiciarys website, the J-Net, and on the Federal Judicial Centers website. Moreover, unlike the original version, Appendix A, containing the court forms, will be available only electronically, not in print, so that the forms may be updated more easily. You should periodically check for changes to the manual or its appendices, as they will occasionally be updated in between major substantive revisions to reflect changes in the Federal Rules of Civil Procedure or other minor edits. We hope that you will find this manual useful as one of the many tools available to assist you in your day-to-day work.

Julie A. Robinson Chair, Court Administration and Case Management Committee

ContentsAcknowledgments xi Introduction 1 Chapter 1: Early and Ongoing Control of the Pretrial Process 5 A. Establishing Early Case-Management Control 5 1. In general 5 2. Specific techniques 6 a. Initial scheduling orders and case-management guidelines 6 b. Early case screening 8 c. Differentiated case management 9 B. Prompting Counsel to Give Early Attention to the Case 10 1. In general 10 2. The parties meet and confer conference and mandatory initial disclosures 10 3. Supplementing the meet and confer agenda 12 Chapter 2: Setting and Monitoring a Case-Management Plan 13 A. Consulting with Lawyers and Unrepresented Parties 14 B. Scheduling a Rule 16 Conference 15 C. Setting a Case-Management Plan Through the Rule 16 Conference 17 1. Who should conduct the conference? 17 2. When should the conference be held? 17 3. Where should the conference be held? 18 4. Is teleconferencing appropriate? 18 5. Should the proceedings be recorded? 19 6. Who should attend? 20 a. Lawyers 20 b. Litigants 20 c. Others 21 7. What can lawyers prepare? 22 a. The conference statement/order 22 b. Short-form conference statement/order 23 c. Uniform orders 24 8. What subjects are covered at the Rule 16 conference? 24 9. What can you do to monitor the scope of the claims? 26 a. Identifying and narrowing the issues 26 b. Limiting joinder of parties and amendment of pleadings 28 D. The Scheduling Order and Calendar Management 28 1. Issuing the scheduling order 28 2. Calendar management considerations 29

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Civil Litigation Management Manual Chapter 3: Discovery Management 31 A. In General 31 B. Specific Techniques for Managing Discovery 33 C. Anticipating and Forestalling Discovery Problems 35 D. Limiting Discovery 37 1. In general 37 2. Document requests 39 3. Depositions (who, how many, etc.) 40 E. Handling Discovery Disputes 41 1. Methods for reducing the number of disputes 41 2. Discovery motions 41 F. Discovery of Electronically Stored Information 42 1. Electronic discovery issues 43 a. Preservation of data 43 b. Form of production 44 c. Archives and legacy data 45 d. On-site inspection or sampling 45 e. Need for expert assistance 46 2. Management tools for electronic discovery 46 a. Early exchange of computer system information 46 b. Rule 16(c) pretrial conference agenda 47 c. Rule 26(a)(1) initial disclosures 47 d. Proportionality 48 e. Cost allocation 48 f. Rule 53 special master or Rule 706 court-appointed expert 48 Chapter 4: Pretrial Motions Management 51 A. In General 51 B. Specific Techniques 54 1. Pretrial motions conference 54 2. Motions screening 55 3. Motions timing 55 4. Limiting oral arguments on motions 57 C. Treatment of Specific Types of Motions 57 1. Motions for summary judgment 57 a. In general 57 b. Specific techniques 58 2. Motions for injunctive relief 59 3. Motions for remand 60 a. In general 60 b. Specific techniques 61 4. Motions to dismiss 62

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Contents a. In general 62 b. Specific techniques 62 5. Motions raising qualified immunity 63 6. Motions that remove a case from the schedule set for it 64 7. Motions for sanctions 64 a. In general 64 b. Specific techniques 66 Chapter 5: Alternative Dispute Resolution and Judicial Settlement 69 A. Alternative Dispute Resolution Procedures 70 1. Some terms to keep in mind 71 2. Authority to refer cases to ADR 73 3. Deciding whether to refer a case to ADR, selecting an ADR process, and determining the appropriate time for the referral 75 a. Mediation 78 b. Arbitration 79 c. Early neutral evaluation 80 d. Summary jury trial, summary bench trial, and mini-trial 81 e. Settlement week 82 4. Selecting and compensating an ADR neutral 83 5. Issuing a referral order 85 6. Managing cases referred to ADR 87 B. Judicial Settlement 88 1. The judges role 89 2. The timing of settlement discussions 90 3. Successful settlement techniques 92 4. Recording the settlement 95 5. Settlement in cases involving pro se litigants 96 6. Ethical and other considerations in judge-hosted settlement negotiations 97 Chapter 6: Final Pretrial Conference and Trial Planning 99 A. Planning the Final Pretrial Conference 100 1. Timing and arrangements 100 2. Preparation for the final pretrial conference 101 3. Subjects for the conference 102 a. In general 102 b. Preliminary considerations 103 c. Expert witnesses 104 d. Exhibits 105 e. Jury issues 106 f. Scheduling and limiting trial events 107 4. The final pretrial order 109

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Civil Litigation Management Manual B. The Trial Phase 109 1. Jury trials 109 a. In general 109 b. Techniques for trial management 109 c. Assisting the jury during trial 111 2. Bench trials 113 a. In general 113 b. Techniques for trial management 113 c. Deciding the case 113 Chapter 7: Special Case Matters 117 A. Mass Tort, Class Action, and Other Complex Cases 118 1. Complex cases generally 118 2. Mass tort cases 121 3. Class action cases 121 B. Management of Expert Evidence 122 1. Early pretrial evidence 123 2. Daubert hearing; final pretrial evidence 124 3. Trial evidence 125 4. Court-appointed experts 126 C. High-Profile Cases 127 1. Making a plan and assigning responsibilities 128 2. Planning for the presence of the media 130 3. Interacting with the media 131 a. Court interactions with the media 131 b. Attorney interactions with the media 132 4. Protecting the jurors, facilitating their attention, and providing for their comfort 132 5. Planning for security 134 6. Managing the courtroom 135 7. Managing the case and the rest of your docket 136 D. Pro Se Cases 136 1. Early screening 137 2. In forma pauperis status 139 3. Securing counsel for pro se litigants 139 4. Scheduling and monitoring the pro se case 141 5. Holding settlement discussions and conducting the trial 143 Chapter 8: Personnel Resources in Litigation Management 145 A. Court and Chambers Staff 145 1. Law clerks 145 2. Secretary/judicial assistant 148 3. Courtroom deputies or case managers 149

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Contents B. Magistrate Judges 150 1. Referral of nondispositive matters 151 2. Referral of dispositive matters 152 3. Referral of trials 152 4. Other referrals 153 5. Method for assigning matters to magistrate judges 153 C. Special Masters 154 1. Authority to appoint a special master 155 2. Reasons for appointing a special master 156 3. Selecting and appointing a special master 157 4. The special masters report 159 5. Compensating the special master 159 Chapter 9: Using Information Technology for Litigation Management 161 A. Training for Judges and Court Staff 161 1. National workshops for all jud

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