Monday, February 9, 2015
Law.com and the ABA Journal both reported last week on an order entitled "Order on One Millionth Discovery Dispute" issued by Judge Rosemary Collyer in the case of Carolyn Herron v. Fannie Mae et al., No. 10-943 (D.D.C. February 2, 2015). (The Blog of Legal Times earlier reported strained relations between the parties' counsel dating all the way back to 2011.)
"The parties bring yet another discovery dispute before the Court," began the judge, proclaiming herself "exhausted with these disputes." The order and the stories that reported it implied that the parties were equally to blame for the contentiousness of discovery and the repeated extensions of the discovery cutoff.
So I wondered: what actually happened in this case? Was discovery to blame for the case's five-years-and-counting duration? If so, was there any way to attach responsibility, beyond the standard allegations of "overbroad fishing" by the plaintiff and "stonewalling" by the defendants?
Through PACER I accessed the docket record and many of the documents filed in the case. In my view, the most striking thing that I found is that it is virtually impossible for a member of the public using only PACER to get to the bottom of discovery in this case.
This is not just because Rule 5 of the Federal Rules of Civil Procedure prohibits the filing of discovery documents "until they are used in the proceeding or the court orders filing." The public unavailability of most of the discovery disputes in this case on PACER results from two additional things. First, Judge Collyer required the parties to bring discovery disputes to her attention by letter to her chambers, followed by a telephone conference, usually followed by a brief minute order. Thus, unlike a formal motion to compel that would attach the discovery documents at issue as exhibits, rendering them available on PACER, the details of these disputes are not publicly available. Second, protective orders were entered that required the filing under seal of the lion's share of the formal motions and responses that did get filed.
Wednesday, January 7, 2015
A three-part Reuters investigation entitled "The Echo Chamber" (here, here, and here), which is discussed in this week's The New Yorker magazine, begins: "A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise."
Hat tip: Tom Goldstein, SCOTUSBlog
Saturday, January 3, 2015
Chief Justice John Roberts once suggested that legal scholarship was not helpful to the bar, inventing a humorous parody of a law review article about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria." I find his 2014 Year-End Report on the Federal Judiciary only slightly more practical than the fictional article.
In a report almost entirely devoted to the federal courts' plodding adoption of technological advances, the Chief Justice began with a lengthy description of the Court's 1935 installation of a pneumatic tube system. He then praised the courts' use of "computer-assisted legal research" and the CM/ECF electronic filing system as though these were new developments.
Finally, he announced the Supreme Court's anticipated 2016 rollout of "its own electronic filing system," which will make "all filings at the Court . . . available to the legal community and the public without cost on the Court's website." However, as several commentators noted, this newfangled phenomenon has already been a reality for years through SCOTUSBlog and The American Bar Association.
Observers from The Washington Post to CBS News criticized the Chief Justice's failure, in his discussion of technology, to mention the clamor to allow video cameras (or even still photos) in the Supreme Court. The Wall Street Journal reports that even the ranking Republican member of the Senate Judiciary Committee, Iowa Senator Chuck Grassley, said "the courts have yet to embrace the one technology that the founders would likely have advocated for--cameras in the courtroom.”
What else is going on in the federal courts? Not much, according to the report. Filings decreased in the Supreme Court, the federal courts of appeal, and the bankruptcy courts. Filings for criminal defendants in the districts courts decreased also.
In fact, only civil case filings in the district courts nominally increased by 4% to 295,310. Diversity filings increased 13%, "mainly because of growth in personal injury and product liability filings." The Chief Justice doesn't say it, but those are typically cases that are subjected to Multidistrict Litigation (MDL).
According to the MDL Panel's statistical analysis for fiscal 2014, 53,103 civil cases in 2014 were subjected to MDL proceedings. In fact, there has been a steady rise in the number of cases subjected to MDL proceedings for over 25 years.
In contrast to the almost-meaningless number of "filings" that end up in MDL, there are only 314 pending MDL "litigations," and 46 of them were centralized in fiscal year 2014. That means that what counts for official purposes as around 50,000 cases boiled down to 46 "litigations." So it's not really clear that civil filings have increased, either.
Of course, it is unrealistic to expect the Year-End Report of the Chief Justice to explain this. The 2012 Year-End Report spoke raptly of the U.S.S. Constitution and the War of 1812. The 2013 Year-End report wistfully referenced A Christmas Carol and It's A Wonderful Life in connection with Congress' "sequester" of funds that year.
This year, the Chief Justice closed with a reference to the "sturdy bronze tortoises" at the bases of "the Court's exterior lampposts," "symbolizing the judiciary's commitment to constant but deliberate progress in the cause of justice." Hmm. I wonder if he's read The Case Against the Supreme Court by Erwin Chemerinsky.
Thursday, May 22, 2014
The National Law Journal has made available in digital form 257 financial disclosure reports for federal appellate judges for the year 2012 (the last year available), which the Journal had to retrieve manually.
I clicked on the first name, Judge D. Brooks Smith, appointed to the Third Circuit in 2001. Judge Smith received over $23,000 from Penn State University Dickinson School of Law as an adjunct professor in the fall semester of 2012. He was also reimbursed for travel by two law school Federalist Society chapters in 2012 as a "speaker for education program."
The reports should prove interesting reading.
Friday, May 2, 2014
As a break from writing or grading your final exams (and to walk down the memory lane of law practice for some of us), here's a great reenactment of an argument during a deposition about the definition of a photocopier. The short video by writer and director Brett Weiner is part of the New York Times Op-Docs series and is a verbatim transcript of a deposition from an Ohio case.
Wednesday, April 16, 2014
We covered earlier the agenda for the Civil Rules Advisory Committee’s April meeting, which took place in Portland, Oregon last week and was an important step for the recently proposed amendments to the Federal Rules of Civil Procedure. Bloomberg BNA’s U.S. Law Week has this report on the result of the meeting.
The Advisory Committee’s recommendations go next to the Standing Committee on the Rules of Practice and Procedure, which will meet in May.
Hat Tip: Tom Rowe
Thursday, March 20, 2014
I have admittedly fallen down on my self-appointed job of reporting on bitcoin litigation. Somewhat belatedly, I provide an update on some of the litigation surrounding the collapse of Mt. Gox, one of the earliest, largest, and best-known bitcoin exchanges.
On Feb. 27, 2014, a putative class action, Greene v. Mt. Gox Inc., Mt. Gox KK, Tibanne KK, and Mark Karpeles, No. 1:14-cv-1437, was filed in the Northern District of Illinois. Subject matter jurisdiction was premised on the Class Action Fairness Act. The complaint alleged counts for consumer fraud, common law fraud, negligence, and conversion, among other causes of action.
Two classes are proposed:
(1) Payment Class: All persons in the United States who paid a fee to Mt. Gox to buy, sell, or otherwise trade bitcoins.
(2) Frozen Currency Class: All persons in the United States who had bitcoins or Fiat Currency stored with Mt. Gox on Feb. 7, 2014.
On March 9, 2014, Mt. Gox Co., Ltd., which apparently is also known as Mt. Gox KK, filed a bankruptcy petition under Chapter 15 (foreign proceeding) in the Northern District of Texas, No. 3:14-bk-31229. Under the automatic stay, the Greene proceeding was stayed against defendant Mt. Gox KK.
However, as against the remaining defendants, Judge Feinerman in the Greene case entered a temporary restraining order on March 11, 2014. The court ruled that plaintiff had demonstrated a likelihood of success on the merits with respect to claims under the Illinois Consumer Fraud Act, common law fraud, negligence, conversion, and for an accounting, and restrained the defendants from selling, transferring, disposing of, or concealing any of their assets or records, including preservation of their web site.
Monday, March 10, 2014
Want a cringe-worthy example of a difficult deponent? Try this excerpt of Justin Bieber's deposition in Binion v. Bieber, pending in state court in Miami. The complaint alleges:
7. At the aforedescribed date, time and place, Plaintiff, who is a 56 year old professional photographer, was legally on the sidewalk outside of the Hit Factory, taking photographs of Defendant BIEBER.
8. Defendant BIEBER, who is an internationally famous recording artist, did not want the Plaintiff to take photographs of him, so he directed HESNY and three other bodyguards to confront Plaintiff, and to forcibly take the memory card from Plaintiff’s camera.
9. In compliance with BIEBER’s instructions, Defendant HESNY threw Plaintiff against a wall, began choking him, and threatened Plaintiff with a gun, while the other bodyguards (whose names are unknown to the Plaintiff, pending further discovery), assisted him in threatening Plaintiff and forcibly removing the memory card from his camera.
Thanks to Brittany Cooper for passing this along!
Monday, February 24, 2014
Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules. He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned comments with a committee of the Judicial Conference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."
Monday, February 10, 2014
Adam Liptak reports in the New York Times on last week’s appearance by Justices Ginsburg (Brooklyn) and Kagan (Manhattan) at the New York City Bar Association. A few of the funnier bits from Justice Kagan’s lecture involve civil procedure. From the article:
Justice Kagan also had a little fun with Justice Ginsburg’s writing and interests. “As a law professor, she was a pathmarking scholar of civil procedure,” Justice Kagan said, and then paused. “Pathmarking. Have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”
Justice Ginsburg is also an expert in comparative civil procedure, Justice Kagan said: “She wrote what I am confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg.”
Monday, December 9, 2013
The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."
Apparently without irony, Third Branch notes, "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."
Friday, December 6, 2013
Okay, I've succombed to bitcoin madness. A search today of the ALLCASES library in the Westlaw database yielded three cases with the word "Bitcoin" in them. The only one of any recency was the following.
In Entrepreneur Media, Inc. v. Smith, No. 2:10–mc–55–JAM–EFB (E.D. Cal. Nov. 26, 2013), a judgment creditor/plaintiff moved to compel the production of documents sought in aid of enforcement of its judgment against the judgment debtor/defendant. The document request included, "Any and all books, letters, papers, files, or documents . . . which show any wire transfer, electronic distribution and/or transmission of funds, purchase of debit cards, acquisition and use of any online digital banking services, such as Bitcoin, and/or any and all other papers which show any account in YOUR name, and moreover, any account by any entity, including any digital entity, for the TIME PERIOD." Without addressing any issue that might have been presented by the inclusion of Bitcoin transactions in the document request, the court granted the motion to compel this particular request (although it denied the motion as to other requests).
Friday, November 15, 2013
H.R. 2655, the so-called "Lawsuit Abuse Reduction Act of 2013," passed the House of Representatives yesterday 228-195 (sigh . . . ).
In 2011, Professor Lonny Hoffman testified against this bill before the House Judiciary Committee.
Wednesday, November 6, 2013
Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:
- Emily Bazelon, Slate: Shut Up, Judge!
- Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
- Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
- The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)
More coverage here.
Sunday, November 3, 2013
We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:
- Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
- Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
- Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
- Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps
Friday, November 1, 2013
There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).
- Monday, November 4: SCOTUS oral argument in Walden v. Fiore (personal jurisdiction and venue)
- Tuesday, November 5: Senate Judiciary Committee Hearing, Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice? (witnesses: Arthur Miller, Andrew Pincus, Sherrilyn Ifill)
- Tuesday, November 5: SCOTUS announces one or more opinions in argued cases (could it be Daimler v. Bauman?)
- Tuesday, November 5: SCOTUS oral argument in Sprint v. Jacobs (Younger abstention)
- Wednesday, November 6: SCOTUS oral argument in Mississippi ex rel. Jim Hood v. AU Optronics Corp. (Class Action Fairness Act)
- Thursday, November 7: Public hearing on the proposed amendments to the Federal Rules of Civil Procedure
Thursday, October 31, 2013
Second Circuit Stays SDNY's Stop-and-Frisk Rulings Pending Appeal, Orders District Judge Removed From Case
In August, U.S. District Judge Shira Scheindlin ruled that the New York City Police Department’s “stop and frisk” policy was unconstitutional and ordered a series of remedies. Today the Second Circuit not only stayed Judge Scheindlin’s orders and opinions pending appeal; it also ordered that she be taken off the case. From the Second Circuit’s order (footnotes omitted):
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
Friday, October 25, 2013
Sunday, October 13, 2013
Lee Epstein (USC): “Claims about the Roberts court’s activism seem overwrought.”
Suzanna Sherry (Vanderbilt): "[T]he Supreme Court had erred more often in sustaining laws than in striking them down. 'Too much of a good thing can be bad,' she wrote, 'and democracy is no exception.'" Professor Sherry's article, entitled "Why We Need More Judicial Activism," is forthcoming in early 2014. Here's the abstract:
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.
Lee Epstein (USC) & Andrew Martin (Wash U): “In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws.” Professors Epstein and Martin co-authored an article last year on the topic of judicial activism and the Roberts Court, entitled "Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State, and Local Laws."
Liptak's article also quotes a number of others, including several of the Justices themselves. The article is worth a read for those interested in the judicial activism debate.
Monday, September 30, 2013
The BLT: The Blog of LegalTimes reports that the Justice Department has released a Contingency Plan for FY 2014 (which starts tomorrow) "in the event of a lapse in appropriations" (the phrase used in the Contingency Plan). Most Civil Division employees will be subject to furlough because their activities do not relate to "emergencies involving the safety of human life or the protection of property," or meet some other category of exemption. Although the Administrative Office of the U.S. Courts has indicated "that federal courts will continue to hear and decide cases without interruption," Justice is directing its civil litigators "to approach the courts and request that acvtive cases, except for those in which posponement would compromise . . . the safety of human life or the protection of property, be postponed until funding is available."