Tuesday, June 21, 2022
Today the Supreme Court issued a 5-4 decision in Shoop v. Twyford. Chief Justice Roberts authors the majority opinion, joined by Justices Thomas, Alito, Kavanaugh, and Barrett. The case involves Twyford’s request to be transported to a hospital for medical testing that he argued could support his claim for habeas relief. The district court granted Twyford’s request under the All Writs Act.
The Supreme Court reverses the transportation order, noting the many obstacles that AEDPA imposes on individuals seeking to present new evidence in support of a habeas petition. Chief Justice Roberts writes that a court must consider AEDPA’s limits “even when the All Writs Act is the asserted vehicle for gathering new evidence,” because “a petitioner cannot use that Act to circumvent statutory requirements or otherwise binding procedural rules.” The district court should not have granted Twyford’s request for transportation because he “sheds no light on how he might persuade a court to consider the results of his testing, given the limitations AEDPA imposes on presenting new evidence.”
The four dissenting justices do not address the substance of Twyford’s transportation request. Rather, the core disagreement is over appellate jurisdiction. In a lengthy footnote, Chief Justice Roberts concludes that appellate jurisdiction is proper under the collateral order doctrine, citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949): “Transportation orders issued under the All Writs Act (1) conclusively require transportation; (2) resolve an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claims, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144–145 (1993); and (3) are entirely unreviewable by the time the case has gone to final judgment.”
Justice Breyer’s dissenting opinion, joined by Justices Sotomayor and Kagan, argues that the collateral order doctrine does not apply, reasoning that the transportation order was “analogous to a discovery order” and that there was “no reason why such an order ordinarily should be of greater importance than a discovery order of some other kind.” Justice Gorsuch writes in his dissenting opinion: “I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen.”
Tuesday, June 14, 2022
As we head down the home stretch for this Term’s Supreme Court decisions, here are some of the interesting decisions that came down earlier this month:
Egbert v. Boule: Justice Thomas’s majority opinion (joined by Roberts, Alito, Kavanaugh, and Barrett) holds that Bivens cannot be extended to allow a cause of action for the plaintiff’s Fourth Amendment excessive-force claim and First Amendment retaliation claim against a U.S. Border Patrol Agent. Justice Gorsuch authors a concurring opinion. And Justice Sotomayor authors an opinion (joined by Breyer and Kagan) partially concurring in the judgment and partially dissenting; they argue that a Bivens action should exist for the plaintiff’s Fourth Amendment claim, but they agree with the majority’s ultimate conclusion that the First Amendment retaliation claim may not proceed under Bivens.
Garland v. Gonzalez: Justice Alito’s majority opinion (joined by Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett) holds that 8 U.S.C. §1252(f)(1), a provision of the Immigration and Nationality Act (INA), deprives federal district courts of jurisdiction to consider the plaintiffs requests for classwide injunctive relief. Justice Sotomayor authors an opinion (joined in full by Kagan and in part by Breyer) partially concurring in the judgment and partially dissenting, arguing that the INA preserves the district courts’ authority to issue classwide injunctions against the Executive Branch.
Kemp v. United States: Justice Thomas’s majority opinion (joined by Roberts, Breyer, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett) holds that a judge’s error of law qualifies as a “mistake” under Federal Rule of Civil Procedure 60(b)(1); thus a motion for relief from judgment based on such an error is subject to Rule 60(c)(1)’s one-year deadline for 60(b)(1) motions. Justice Sotomayor authors a concurring opinion emphasizing that Rule 60(b)(6)—which is not subject to the one-year deadline—may remain available “to reopen a judgment in extraordinary circumstances, including a change in controlling law.” Justice Gorsuch authors a solo dissent, arguing that the Court should have dismissed the writ of certiorari as improvidently granted.
Southwest Airlines Co. v. Saxon: Justice Thomas’s unanimous opinion holds that the Federal Arbitration Act (FAA) does not apply to a ramp supervisor for Southwest Airlines whose work “frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country,” because she fit within the FAA’s exemption for “workers engaged in foreign or interstate commerce.” Justice Barrett did not participate in the case.
ZF Automotive U.S., Inc. v. Luxshare, Ltd.: Justice Barrett’s unanimous opinion holds that 28 U.S.C. § 1782—which allows federal district courts to order discovery “for use in a proceeding in a foreign or international tribunal” does not apply to private arbitration proceedings; the statute covers only “governmental or intergovernmental adjudicative bodies.”
Monday, March 21, 2022
Wednesday, September 8, 2021
The Supreme Court has removed Servotronics, Inc. v. Rolls-Royce PLC, from its oral argument calendar. As covered earlier here, the case would have addressed “[w]hether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals.”
Friday, July 2, 2021
Section 77z-1(b)(1) of the Private Securities Litigation Reform Act (“Reform Act”) provides:
In any private action arising under [the Securities Act of 1933], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds, upon the motion of any party, that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
15 U.S.C. § 77z-1(b)(1) (emphasis added).
The question presented is:
Whether the Reform Act’s discovery-stay provision applies to a private action under the Securities Act in state or federal court, or solely to a private action in federal court.
Monday, April 26, 2021
Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.
Monday, March 22, 2021
Whether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in “a foreign or international tribunal” encompasses private commercial arbitral tribunals, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.
Monday, December 21, 2020
The Pound Civil Justice Institute has published the report of its 2020 Judges Forum, Dangerous Secrets: Confronting Confidentiality in Our Public Courts. It features academic papers by Dustin Benham and Sergio Campos, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Thursday, October 15, 2020
Yesterday, Judge Polster partially granted the plaintiffs’ motion for sanctions against the Allergan and Teva defendants in the In re: National Prescription Opiate Litigation MDL. The issue was “whether the Plaintiffs are entitled to some relief, given that they only recently received a critical document (‘the Cegidim Report’), even though the Court ordered the Report must be produced and even though Plaintiffs asked Allergan and Teva for it numerous times during discovery in the last 18 months.”
Judge Polster explained:
[I]f the Cegidim Report supported, rather than contradicted, assertions Teva and Allergan made in their summary judgment briefing, it seems awfully likely the defendants would have worked more diligently to find it. And that is the level of diligence that was required, regardless.
Here is the full order:
Monday, March 9, 2020
Today on the Courts Law section of JOTWELL is Robin Effron’s essay, Discovery and the Limits of Transsubstantivity. Robin reviews Diego Zambrano’s recent article, Discovery as Regulation, which is forthcoming in the Michigan Law Review.
Monday, October 7, 2019
Today the U.S. Court of Appeals for the Second Circuit issued a unanimous decision in In re del Valle Ruiz. The case involves discovery applications under 28 U.S.C. § 1782, which provides: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
Judge Hall’s opinion, joined by Judges Parker and Droney, begins:
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after a government‐forced sale. Petitioners, a group of Mexican nationals and two investment and asset‐management firms, initiated or sought to intervene in various foreign proceedings contesting the legality of the acquisition.
Petitioners then filed in the Southern District of New York two applications under 28 U.S.C. § 1782 seeking discovery from Santander and its New York‐based affiliate, Santander Investment Securities Inc. (“SIS”), concerning the financial status of BPE. The district court (Ramos, J.) denied the applications for the most part, concluding that it lacked personal jurisdiction over Santander. The court granted discovery against SIS and in doing so rejected Santander’s argument that § 1782 does not allow for extraterritorial discovery. These consolidated appeals follow.
We are first asked to delineate the contours of § 1782’s requirement that a person or entity “resides or is found” within the district in which discovery is sought. We hold that this language extends § 1782’s reach to the limits of personal jurisdiction consistent with due process. We nonetheless conclude that Santander’s contacts with the Southern District of New York were insufficient to subject it to the district court’s personal jurisdiction.
We are next tasked with deciding whether § 1782 may be used to reach documents located outside of the United States. We hold that there is no per se bar to the extraterritorial application of § 1782, and the district court may exercise its discretion as to whether to allow such discovery. We conclude that the district court acted well within its discretion here in allowing discovery from SIS.
Wednesday, May 22, 2019
Seth Endo has published Discovery Hydraulics, 52 UC Davis L. Rev. 1317 (2019). Here’s the abstract:
Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. However, like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.
In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information; and (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. Last, but not least, a significant practical benefit is that this analytical approach should provide courts with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.
Wednesday, December 19, 2018
Diego Zambrano has published Judicial Mistakes in Discovery, 113 Nw. U. L. Rev. 197 (2018). Here’s the abstract:
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Friday, November 16, 2018
SCOTUS grants cert to decide the scope of discovery in case challenging 2020 census question about citizenship status
The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is granted. Petitioners' brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents' brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.
The question presented is:
Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
Tuesday, August 28, 2018
Below is the announcement for the William P. Butterfield Award for Excellence in eDiscovery Writing:
The Sedona Conference and Hausfeld, LLP are sponsoring the William P. Butterfield Award for Excellence in eDiscovery Writing. The Award will be presented annually to the winner of a writing competition held to recognize and incentivize innovative legal thinking and technical solutions that advance the field of eDiscovery and promote cooperation, collaboration and efficiency in eDiscovery. The winner of the competition will be recognized in a news release announcing the Award, receive a $10,000 cash award from Hausfeld LLP and, at the option of the winner and The Sedona Conference, have his or her winning paper published in The Sedona Conference Journal.
For more information about the Award and details about how to enter the writing competition, please see https://www.hausfeld.com/williampbutterfieldaward.
The 2018 deadline for submissions is October 1, 2018. The winner will be announced before 2018 year's end. For 2019 and the years following, the submission deadline will be March 1 of each year, with the winner to be announced on or before May 1 of each year.
Thursday, August 16, 2018
This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”
You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.
The period to submit written comments on the proposed amendments runs until February 15, 2019.
You can find more information about submitting written comments and presenting testimony at public hearings here.
Thursday, May 31, 2018
Bob Klonoff has posted on SSRN a draft of his article, Application of the New “Proportionality” Discovery Rule in Class Actions: Much Ado About Nothing, which is forthcoming the Vanderbilt Law Review. Here’s the abstract:
The “proportionality” amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs’ bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, the author has reviewed every published judicial opinion (approximately 135) between December 1, 2015, and April 30, 2018, that applies the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. Nonetheless, the results are striking. At bottom, the proportionality amendment has had little impact, at least in the class action context. Courts have generally indicated that the new rule does not fundamentally change the governing principles. In ruling on discovery disputes in class actions, courts continue to conduct nuanced, highly fact-specific analyses, with results that differ little from pre-amendment case law. The courts are especially liberal in allowing discovery that is relevant to class certification. In short, the class action discovery decisions thus far do not support the predictions that the proportionality rule would lead to a sea change.
Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.
Thursday, April 5, 2018
Yesterday’s story in the National Law Journal begins: “All litigation funding arrangements in Wisconsin state courts will have to be disclosed in civil cases under a new measure signed into law by the state’s governor Tuesday.”
Here’s the text of the bill.
Tuesday, January 9, 2018