Category: Civil Procedure

Supreme Court’s New Arbitration Ruling: Limits Federal Jurisdiction For Confirming or Challenging Arbitration Awards Under the FAA

On March 31, 2022, the Supreme Court of the United States issued a decision in Badgerow v. Walters, No 20-1143, addressing when federal courts have jurisdiction to rule on motions to confirm, modify, or vacate arbitration awards under the Federal Arbitration Act (FAA). In an 8-1 decision, the Court narrowed the circumstances in which federal courts have such jurisdiction. Under the Court’s new decision, employers (and employees) will now more often be required to file their motions to confirm, modify, or vacate arbitration awards in state rather than federal court.

The Court’s Decision

The Court’s decision addresses a number of arcane questions of civil procedure and federal jurisdiction that could make for a nightmarish law school exam.

The decision starts from the well-accepted premise that the FAA does not grant federal courts jurisdiction. The FAA does, however, give parties to arbitration agreements certain rights, including the right to move a court to compel arbitration and the right to move a court to vacate, modify, or confirm an arbitration award. So the question that follows is: When can parties file these FAA motions in federal court and when must they file them in state court?

Under Badgerow, we now know that the answer is not the same for motions to compel arbitration and motions to vacate, modify, or confirm arbitration awards.

Under the Court’s prior case law, Vaden v. Discover Bank (2009), an employer can file a motion to compel arbitration in federal court so long as the underlying dispute to be arbitrated involves a question under federal law. For example, if an employee is alleging claims under a federal statute, such as Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, or any of the myriad other federal employment laws, a federal court would have jurisdiction to rule on a motion to compel arbitration of those claims. In addition to this “federal question” jurisdiction, the federal court might also have jurisdiction based on the diversity of the parties. Under a federal court’s diversity jurisdiction, a court also has jurisdiction to hear disputes between parties that are citizens of different states where the amount in controversy exceeds $75,000.

In Badgerow, the Court held that a different analysis applies to motions to vacate, modify, or confirm arbitration awards, which are governed by different sections of the FAA. Unlike motions to compel arbitration, federal courts are not permitted to “look through” a motion to vacate, modify, or confirm to see whether there is a federal question involved in the underlying arbitration matter. Instead, a federal court must determine whether it has jurisdiction based on the motion itself.

Asking a court to vacate, modify, or confirm an arbitration award will usually raise questions about contract interpretation and enforcement. Contract law is usually state law. Thus, a motion to vacate, modify, or confirm arbitration awards will generally present questions of state law rather than federal law.

Since motions to vacate, modify, or confirm arbitration awards will rarely present federal questions on their face, federal courts will rarely have “federal question” jurisdiction over such motions. Federal courts may still have diversity jurisdiction if the parties on opposite sides of the motion to vacate, modify, or confirm arbitration awards are citizens of different states and the amount in controversy exceeds $75,000. It is also theoretically possible that a federal court could still have federal question jurisdiction on some other grounds, but the Badgerow decision did not delve into that subject.

Key Takeaways

Under the Supreme Court’s new decision, employers will more often need to turn to state courts for motions to confirm, modify, or vacate arbitration awards under the FAA.

State courts historically have been more hostile to arbitration than federal courts. In losing the option of going to federal court to confirm some arbitration awards, arbitration may become marginally less reliable. However, this new decision should not affect the overall benefits that many employers conclude they receive from using employment arbitration.

In addition, the new decision will likely affect employers’ strategies in moving to compel arbitration, because the scope of federal jurisdiction is broader for such motions. In seeking to compel arbitration, employers may now more frequently ask the federal court to retain jurisdiction pending the outcome of the arbitration so that the parties may return to that federal court to address any subsequent motion to vacate, modify, or confirm the resulting arbitration award.

Finally, by forcing employers (and other parties to arbitration agreements) more frequently to go to state court to vacate, modify, and confirm arbitration awards, the Badgerow decision will likely bring to the fore another question that has been looming on the horizon: do the FAA’s provisions permitting motions to vacate, modify, and confirm arbitration awards even apply in state court? Several courts around the country have suggested that they do not, meaning that employers (and other parties to arbitration agreements) will need to rely on state arbitration statutes for such motions in some jurisdictions. But that is another topic for another day.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles about arbitration, please visit the NLR ADR/Arbitration/Mediation type of law page.

Electronic Medical Record Provider Pays $930,000 in First Civil Cyber-Fraud Initiative Settlement

For the first settlement as part of the Department of Justice’s Civil Cyber-Fraud Initiative, DOJ settled a case against medical services government contractor Comprehensive Health Services, LLC (CHS) for $930,000.  This settlement resolves allegations brought forth in two qui tam lawsuits, where four whistleblowers filed suit on behalf of the government under the qui tam provision of the False Claims Act.  Three of the whistleblowers received $15,000, in addition to attorneys’ fees, and one relator received $127,050 for reporting fraud.

“This settlement serves notice to federal contractors that they will be held accountable for conduct that puts private medical records and patient safety at risk,” said the United States Attorney for the Eastern District of New York.

CHS, as part of the medical services they provided to the U.S. government, was paid to implement a secure electronic medical record (EMR) system as part of contracts with the State Department and Air Force at various U.S. consulate and military locations in Iraq and Afghanistan.  The EMR system housed personal health information and medical records for anyone who received medical treatment at the locations CHS served, including U.S. service members, diplomats, officials, and contractors.  According to the allegations, CHS did not consistently store patients’ medical records on the secure EMR system and indeed left scans on a network drive which non-clinical staff could access.

As part of several contracts to which CHS was a party, CHS was supposed to provide medical supplies, including controlled substances subject to U.S. Food and Drug Administration (FDA) or European Medicines Agency (EMA) approval.  According to the allegations, CHS “knowingly, recklessly, or with deliberate ignorance” submitted claims for payment for controlled substances that they obtained by means not sanctioned by these contracts.  Not only did CHS lack a Drug Enforcement Agency license to export controlled substances, but CHS also obtained controlled substances by having their U.S.-based subsidiary request that a South African physician prescribe controlled substances, according to the allegations.  The South African physician prescribed these controlled substances, absent FDA or EMA approval, and a shipping company from the same country imported the substances to Iraq.

Government contractors are supposed to adhere to the terms of their contracts in order to receive reimbursement from the U.S. government.  This medical services provider ignored procurement guidelines to obtain controlled substances, undermining safety controls and misrepresenting their adherence to contract terms in providing medical services to U.S. military personnel.  The DOJ’s Civil Cyber-Fraud Initiative brings the power of the False Claims Act to bear on contractors whose job is to protect sensitive information and critical systems.  Representing that data is secure when it is, in fact, not is a violation of the False Claims Act and constitutes cyber-fraud.  As the Special Agent in Charge of the U.S. Department of State OIG, Office of Investigations noted, “…this outcome will send a clear message that cutting corners on State Department contracts has significant consequences.”

Whistleblowers raised data privacy concerns to CHS, but the contractor failed to implement better cybersecurity protocols in response to their concerns.  The Department of Justice has rewarded its first whistleblowers as part of the Civil Cyber-Fraud Initiative, and they’re just getting started.

© 2022 by Tycko & Zavareei LLP
For more articles about digital health, visit the NLR Health Care Law section.

Broad Majority Decisions in Terrorist Torture and Abortion Law Cases Resolve Important State Secrets and Intervention Procedural Issues: SCOTUS Today

The Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

Zubaydah has been among the most closely watched cases on the Court’s docket. Full disclosure: I am a board member of the Center for Ethics and the Rule of Law at the University of Pennsylvania, which has advocated for the closing of the Guantanamo Bay Naval Base in Cuba, where Zubaydah is detained, and for the rejection of privilege claims as to non-classified information concerning torture. Though I am not surprised by the outcome in the case, it is contrary to what many human rights organizations have been advocating. The admixtures of Justices also provide interesting insights as to how they approach matters of privilege and national security.

In what likely will be one of the last majority opinions written by retiring Justice Stephen Breyer, and subject to various concurrences by Justices Thomas, Kagan, Kavanaugh, and Barrett, the Court reversed the Ninth Circuit and upheld the government’s assertion of state secrets privilege to deny Zubaydah’s attempt to subpoena two CIA contractors from whom he sought to obtain information for use in litigation in Poland concerning his torture at an alleged “black site” in that country. The state secrets privilege allows the government to bar the disclosure of information that, were it revealed, would harm national security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953). While the Ninth Circuit had accepted much of the government’s claim, it concluded that the privilege did not cover information about the location of the detention site, which the court believed had already been publicly disclosed. Indeed, it is clear from the record in the case that there has been substantial public discussion of such a detention site in Poland. However, although the government has concluded that the “enhanced interrogation” to which Zubaydah had been subjected constituted torture, the fact of its location in Poland has never been formally confirmed by the United States. The state secrets privilege permits the government to prevent disclosure of information when that disclosure would harm national security interests, such as “the risk of revealing covert operatives, organizational structure and functions, and intelligence-gathering sources, methods, and capabilities.” Here, Justice Breyer, in a textbook case displaying the essential role that he has played on the Court in pragmatically fashioning majorities to form consensus opinions in controversial cases, accepted the view that verifying the existence, or non-existence, of a CIA black site in Poland, falls within the state secrets privilege because confirmation or denial of the site’s existence and location, even if such information has already been made public through unofficial sources, would harm relations among foreign intelligence services vital to U.S. interests. The majority also noted that the locational information is not essential to the case that Zubaydah is attempting to make, but it also rejected the remand to consider issues of Zubaydah’s treatment that Justices Kagan, concurring, and Justice Gorsuch (interestingly, joined by Justice Sotomayor), dissenting, would have allowed. In a case where there is virtually no disagreement among the Justices as to what the law is, the decision comes down to a procedural formulation that Justice Breyer loosely compares to applying exemptions under the Freedom of Information Act. In any event, the majority held that, as an objective matter, the government’s assertions of privilege and national security risk satisfied its burden of responding to the demand for information.

Notwithstanding the great public interest that surrounds the debate and litigation concerning the efforts of various state legislatures to restrict abortion and to obtain the reversal or narrowing of Roe v. Wade, the Court’s 8-1 majority (only Justice Sotomayor dissented) held only that the Court would not adopt an arbitrary claims-processing rule barring a non-party intervener from taking over an appeal, especially under the conditions presented here. Having first concluded that neither a jurisdictional requirement nor a mandatory claims-processing rule barred consideration of the attorney general’s motion, the Court concluded that no statute or rule restricts the jurisdiction of a court of appeals or provides a general standard to apply in deciding whether intervention on appeal should be allowed. The one passing reference to intervention made in the Federal Rules of Appellate Procedure only concerns the review of agency action. Accordingly, with “respondents cit[ing] no provision that deprives a court of appeals of jurisdiction in the way they suggest, and no such supporting language can be found in 28 U. S. C. §2107, Federal Rules of Appellate Procedure 3 and 4, or any other provision of law. . . [the] Court refuses to adopt what would essentially be a categorical claims-processing rule barring consideration of the attorney general’s motion. When a non-party enters into an agreement to be bound by a judgment in accordance with the agreement’s terms, it is hard to see why the non-party should be precluded from seeking intervention on appeal if the agreement preserves that opportunity. Here, the attorney general reserved ‘all rights, claims, and defenses . . . in any appeals arising out of this action.’ That easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari.”

Justice Sotomayor’s dissent, like the cheese, stands alone. She argues that every case should have a certain end point, and one should be applied here. One wonders if she would entertain a similar opinion in a case like this but where the plaintiffs are appealing. In any event, all of the other Justices are unified by the absence of any textual limitation on their jurisdiction to entertain a motion to intervene on appeal and the reasonable justification made for it by the state attorney general. Where Justice Alito found a constitutional basis for this conclusion and Justice Kagan would only have relied upon statutory interpretation, the vast majority of the Court agreed on the procedural regime adopted irrespective of the fact that there likely would be considerable disagreement about the constitutionality of the statute at issue in the underlying litigation.

©2022 Epstein Becker & Green, P.C. All rights reserved.
For more articles about Supreme Court cases, visit the NLR Litigation section.

Counsel Fee Award When Contesting A Will

In general, the party tasked with defending a decedent’s Will during a Will contest, which is typically the executor, is entitled to the reimbursement of counsel fees that they incur in defending the Will on behalf of the Estate. At times, however, a party who has filed an action to contest a Last Will and Testament may also be entitled to an award of counsel fees provided there was a reasonable and legitimate basis to contest the decedent’s Last Will and Testament. In a recent appellate division case, the court affirmed an award of counsel fees to the contestant of a decedent’s Will for these very reasons.

In this matter, the defendant executor had been awarded counsel fees by the court, as the defendant was responsible for defending the decedent’s Last Will and Testament against the challenges levied by the plaintiff. In addition, the trial court also awarded counsel fees to the plaintiff, as it found that plaintiff’s challenge to the decedent’s Will was made in good faith and was reasonable. Moreover, the court found that plaintiff’s fees for which it sought reimbursement were fair and reasonable. In response, the defendant argued that the award of counsel fees was contrary to the applicable New Jersey court rules, and therefore, objected to the award. The appellate division reviewed the applicable rule of professional conduct, RPC 1.5(a), and concluded that the plaintiff had reasonable cause to contest the validity of the decedent’s Will, and moreover, that the fees the plaintiff sought were reasonable. As such, the appellate division concluded that the trial court correctly awarded counsel fees to the contestant of the decedent’s Will.

This appellate division decision reaffirmed a well-accepted standard as to an award of counsel fees in the context of probate litigation. When you are either taxed with defending a Last Will and Testament or intending to contest a Last Will and Testament, this factor should be considered when deciding whether settlement makes sense. Since there is no guarantee to either side that the counsel fees will be awarded, it is an issue that should be considered in the context of any settlement discussions before trial.

COPYRIGHT © 2021, STARK & STARK
Article by Paul W. Norris with Stark & Stark.
For more articles on estates and trusts, visit the NLR Family, Estates & Trusts section.

It’s Time to Clarify When Cross-Appeals Are Necessary

Much has been said on this blog about when one should cross-appeal, given the Law Court’s jurisprudence on the topic.  I most recently addressed the issue here.  As I noted then, there is some tension between the text of the Maine Rules of Appellate Procedure, which provides that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue,” M.R. App. P. 2C(a)(1), and the Court’s most recent rulings (in Jones v. Secretary of State and Reed v. Secretary of State) regarding the necessity of cross-appealing to preserve an alternative argument for affirmance.  Because of the importance of this issue, my colleague Nolan Reichl and I recently published an article in the Maine Bar Journal (at page 10) addressing the topic.

As we wrote there,

Recent decisions by the Law Court have raised questions concerning whether a litigant must file a notice of cross-appeal merely to argue a judgment should be affirmed based on grounds alternative to those adopted by the trial court. Maine Rule of Appellate Procedure 2C, Law Court precedent, and analogous federal practice all confirm that an appellee urging affirmance of a judgment on alternative grounds need not file a notice of cross-appeal so long as that litigant does not seek a substantive alteration in the terms of the judgment.

We also note that,

as the law now stands, it is less than clear what the cross-appeal rule is. Rule 2C and [the Law Court’s decision in Argereow v. Weisberg] say one thing, while Reed and Jones say another.

Accordingly, we argue that the cross-appeal rule applied in Reed and Jones “should be overruled expressly” and that the “Law Court should take the next available opportunity to clarify its cross-appeal jurisprudence and reaffirm the plain terms of Rule 2C.”

Agree or disagree, we hope that the article furthers the discussion on this important topic.

©2021 Pierce Atwood LLP. All rights reserved.
For more articles like this, visit the NLR Litigation section.

The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause.

In 1994, Liebeck v. McDonald’s Restaurants sparked a nationwide tort reform debate after a jury found McDonald’s liable for a consumer’s injuries after she spilled McDonald’s coffee on herself. At the time, many commentators predicted a wave of frivolous lawsuits and large judgments against businesses. But 25 years later, those predictions have not materialized. While consumers continue to sue, the doctrine of proximate cause limits the liability that businesses face from claims for injuries related to hot drinks.

Liebeck v. McDonald’s Restaurants

In 1992, Stella Liebeck bought a cup of hot coffee from a McDonald’s drive-through in New Mexico. While parked, she placed the cup of coffee between her legs and attempted to peel the cap off. The coffee spilled and Ms. Liebeck sustained second- and third-degree burns.

Liebeck sued McDonald’s, alleging that the hot coffee was defectively manufactured, that it violated the implied warranties of merchantability and fitness for a particular purpose, and that the defect caused her injuries. At trial, Liebeck’s attorneys offered evidence that McDonald’s asked franchisees to brew coffee at 180-190 degrees Fahrenheit. Additionally, the attorneys offered evidence that McDonald’s had received more than 700 reports of burns resulting from coffee spills out of billions of hot coffees sold during the time period.

The jury ruled in favor of Liebeck and awarded her compensatory damages of $200,000 and punitive damages of $2.7 million. But the jury determined that Liebeck was 20 percent at fault for her own injuries, and the court reduced the punitive award significantly, resulting in compensatory damages of $160,000 and punitive damages of $480,000.

Shih v. Starbucks

Shih v. Starbucks presents a similar set of facts, but with a different outcome. In June 2016, Tina Shih went to Starbucks with a friend, and each ordered a hot tea. Each tea was given to Shih in a double-cup – one full cup placed within an empty cup. Neither cup had a sleeve. Shih carried both teas to her table and sat down.

Shih claimed that because the cup of tea was filled to the top and was very hot, she did not want to lift it. Instead, she pulled the lid off the cup and moved her chair back to sip from the cup while it was on the table. Shih pushed her chair back to lean over the cup, lost her balance, and put her hand on the table to steady herself – causing the hot tea to spill in her lap. Shih sustained second-degree burns from the incident.

Shih sued Starbucks. She alleged that the double-cup without a sleeve was a manufacturing defect, which – combined with the cup being filled to the brim with hot tea – caused her injuries. Starbucks moved for summary judgment on Shih’s claims, arguing that Shih could not prove the alleged manufacturing defect proximately caused her injuries. The court agreed, granted Starbucks’s motion, and entered judgment in favor of Starbucks. In 2020, the appeals court affirmed.

Proximate Cause is Key the Difference

The differences between Liebeck and Shih are the litigants’ defect claims and their respective theories of proximate causation. The proximate cause inquiry examines the relationship between the defendant’s alleged conduct and the plaintiff’s injury: if the defendant’s conduct is too attenuated from the consumer’s injuries, the defendant cannot be held liable for those injuries. Proximate cause exists when the defect in question increased the risk of harm to the consumer, and the consumer sustained injuries resulting from the increased risk. Courts generally test proximate cause by looking at whether the harm was a foreseeable result of the defect – meaning the business could reasonably have predicted the harm.

Liebeck’s attorneys successfully argued that the coffee was defective because it was served too hot and that the excessively hot temperature put Liebeck at an increased risk of burns. Liebeck established proximate cause by showing that her burn injuries were a foreseeable result of the alleged defect – the coffee being served very hot.

Shih could not establish proximate cause because the court held that the alleged defect was too attenuated from her injuries. Shih’s attorneys argued that the lack of a cup sleeve and the fact that the hot tea was full made it defective. Specifically, Shih would not have removed the tea lid, leaned forward, moved her chair, lost her balance and grabbed the table – causing it to wobble and spill the tea on her – if Starbucks had given her a cup sleeve or not filled the cup to the brim.

The court held that the alleged defect did not increase the risk of Shih being burned or otherwise injured by the hot tea; therefore, the defect was not the proximate cause of her injuries. The lack of a sleeve and the fullness of the tea did not increase Shih’s risk of losing her balance “while attempting to execute [this] kind of unorthodox drinking maneuver,” and spilling the tea on herself. The court’s use of “unorthodox” illustrates that, in the court’s view, Shih’s injuries were not a foreseeable result of the alleged defect. The court noted that while it is foreseeable that consumers could lose their balance and spill their drinks, losing one’s balance is not “within the scope of the risk” created by Starbucks’ decision to use a double cup and to fill the cup to the brim. Thus, Shih could not prove Starbucks’ actions proximately caused her injuries.

Twenty-five years after Liebeck sparked a national conversation about hot coffee and corporate liability, Shih demonstrates that courts continue to follow public policy limitations like proximate cause to protect businesses from unforeseeable consumer injuries.

© 2021 Schiff Hardin LLP

Article by Emilie McGuire and Jeffrey Skinner with Schiff Hardin LLP.

For more articles on class action lawsuits, visit the NLR Litigation section.

EPA agreement with Kennedy Center protects water quality of Potomac River, Chesapeake Bay

PHILADELPHIA – The John F. Kennedy Center for the Performing Arts in Washington, D.C. has settled alleged Clean Water Act violations at its facility in Washington, D.C., the U.S. Environmental Protection Agency announced today.

The Kennedy Center, located at 2700 F St NW, has a Clean Water Act permit regulating its discharges of condenser cooling water from the facility’s air conditioning system into the Potomac River, which is part of the Chesapeake Bay watershed.

This settlement addresses alleged violations of temperature and pH discharge permit limits required under the Kennedy Center’s Clean Water Act permit. EPA also cited the Kennedy Center for failing to timely submit monitoring reports and failing to submit pH influent data. Additionally, the agreement addresses alleged violations identified by the District of Columbia’s Department of Energy and Environment during a prior inspection of the facility.

As part of the settlement, the Kennedy Center is required to submit a compliance implementation plan. The Kennedy Center has certified that it is now in compliance with permit requirements.

This agreement is part of EPA’s National Compliance Initiative: Reducing Significant Non-Compliance with National Pollutant Discharge Elimination System (NPDES) Permits. For more information about the Clean Water Act permit program, visit www.epa.gov/npdes.

Read this article in its original. form here.

© Copyright 2021 United States Environmental Protection Agency

Article by the EPA

Read more about the Clean Water Act in the NLR section Energy, Climate, and Environmental Law News.

Subpoena Motion Practice in Multidistrict Litigation: The Conflict on Authority Over Subpoena-Related Disputes

A key purpose of multidistrict litigation (MDL) is centralized management of pretrial proceedings to avoid duplicative discovery and resolve common issues in an efficient manner.  An MDL court becomes sufficiently familiar with the facts, scientific issues, and procedural history of the litigation to often allow a just and efficient resolution of complex discovery disputes.

One type of dispute common in MDL proceedings concerns third-party discovery.  Often, third parties are essential sources of critical information about a claim—such as physicians who treated a plaintiff in product liability litigation.  Just as frequently, these third parties are located outside the district of the MDL judge, forcing parties to serve extra-district subpoenas to obtain such discovery.

When disagreements arise over the scope or content of a subpoena, Rule 45 of the Federal Rules of Civil Procedure requires such disputes to be brought in the “district court where compliance is required,” which is rarely the MDL court.  Those situations raise the question whether the MDL court can exercise jurisdiction over subpoena-related disputes despite the mandate of Rule 45.  This article analyzes the apparent conflict between Section 1407’s authorization of MDL courts to resolve pretrial disputes and Rule 45’s subpoena requirements, and how courts have resolved this conflict for MDL litigants.

  1. The Conflict Between the MDL Court’s Authority to Manage Pretrial Proceedings and Rule 45’s “Where Compliance Is Required” Requirement.

At the heart of the dispute over where parties should bring subpoena-related motions in MDL proceedings is the conflict between Rule 45 and Section 1407.  In ordinary cases, Rule 45(d) provides that a party must move to enforce or quash a subpoena in “the district where compliance is required”—typically, the district where the individual or entity resides.  But in enacting Section 1407, Congress centralized management of pretrial proceedings in a single federal court to ensure the “just and efficient” conduct of the litigation.[1]  Indeed, a key role of multidistrict consolidation is to “avoid duplicative discovery, prevent inconsistent pretrial rulings and conserve judicial resources.”[2]

To further these goals, Section 1407 also provides MDL courts with the authority to “exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions.”[3]  Thus, whether this statutory language authorizes MDL courts to manage subpoena disputes involving extra-district nonparties requires courts to confront the “apparent conflict” between Rule 45 and Section 1407.[4]

  1. Who Has Jurisdiction Over Extra-District Nonparty Subpoenas?

  1. Leading Decisions Hold that MDL Courts Have Broad Authority to Enforce Extra-District Subpoenas Under Section 1407

The two leading decisions analyzing the conflict between Section 1407 and Rule 45 arose out of a multidistrict qui tam action consolidated in the District Court for the District of Columbia in U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.  In Pogue, the relator served subpoenas duces tecum on nonparty businesses headquartered in Tennessee.[5]  After the parties failed to resolve disagreements over the scope of the subpoenas, the relator sought to enforce them in the MDL district court.  The nonparties opposed enforcement there, contending that under Rule 45, the subpoenas could only be enforced “where compliance is required”—in that case, the Middle District of Tennessee.[6]

The MDL court noted that “[w]ere this an ordinary case, [the nonparties] would be correct and this case would be easily disposed of” given Rule 45.[7]  But it observed that this was “not an ordinary case” because the Judicial Panel on Multidistrict Litigation had “transferred to this Court related qui tam actions pending across the country under the authority of 28 U.S.C. § 1407.”[8]  The court explained that the purpose of MDL actions is to ensure the “just and efficient” conduct of pretrial proceedings involving common issues and “to eliminate duplicative discovery, pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.”[9]  It then held that “to that end, § 1407 bestows upon the transferee court the power to exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in MDL cases.”[10]

Although the MDL court found that while it was not “a settled question” whether it had jurisdiction over extra-district subpoenas, “the weight of authority and effectuation of the purposes of multidistrict litigation support a finding of jurisdiction,” and that “§ 1407 confers on MDL judges the power to supervise depositions taking place in other jurisdictions.”[11]  The court also found that the use of the term “shall” in Section 1407(b) “mandates that such motions be heard by the MDL court.”[12]  Thus, the court determined that it had jurisdiction over the relators’ motions to compel the extra-district nonparties to comply with the subpoenas.[13]

In a later appeal, the Sixth Circuit[14] agreed with the MDL court, observing that “the Federal Rules are designed to ensure that district courts remain firmly in control of those depositions and document productions involving nonparties located in their districts.”[15]  Because the Federal Rules “could hamstring an MDL court’s ability to conduct coordinated pretrial proceedings over cases that have been consolidated from far-flung foreign districts, the MDL statute empowers an MDL judge to act as a judge of the deposition or discovery district.”[16]  The court, therefore, held that “[a] judge presiding over an MDL case” could rule on subpoena-related motions “notwithstanding the nonparty’s physical situs in a foreign district where discovery is being conducted.”[17]

  1. Courts Have Expressed Conflicting Views on Whether an MDL Court Can Enforce an Extra-District Subpoena Duces Tecum

As one court has observed, “[t]he overwhelming majority of courts that have considered the issue of whether Section 1407(b) authorizes a transferee judge the power to act as any judge of any district for pretrial depositions as well as subpoenas duces tecum, have found that it does.”[18]  For example, the District Court for the District of Puerto Rico in In re San Juan Plaza Hotel Fire Litig. found that to effectuate the purpose of multidistrict litigation, it is “necessary to append to the transferee judge enforcement powers in relation to subpoenas issued in the deposition district, including depositions and subpoenas addressed to nonparties.”[19]  Likewise, the District Court for the District of Kansas in In re EpiPen Mktg., Sales Practices and Antitrust Litig. observed that the “statute’s remedial purpose of eliminating the potential for conflicting contemporaneous pretrial rulings would be frustrated if the MDL court could not entertain motions to compel [compliance with subpoenas in other districts].”[20]  Other courts have reached similar conclusions when presented with the conflict between Rule 45 extra-district subpoenas and Section 1407.[21]

A small minority of courts, however, has narrowly construed Section 1407(b) as authorizing an MDL court to enforce deposition subpoenas—but not document subpoenas.  For example, in In re Packaged Seafood Prod. Antitrust Litig., the MDL court declined to exercise jurisdiction over enforcement of a subpoena duces tecum.  The court acknowledged that Section 1407(b) authorized it to exercise the powers of a district judge in any district “for the purpose of conducting pretrial depositions,” and that “may necessarily include the power to enforce deposition subpoenas.”[22]  But it drew a distinction between a deposition subpoena and a subpoena duces tecum—a distinction which it found “makes a difference.”[23]  In refusing to enforce the subpoena duces tecum, the court reasoned that “[t]he extension of jurisdiction in MDL cases to the conduct of pretrial depositions” is not “tantamount to extending jurisdiction to enforce document subpoenas on third parties.”[24]

Other courts have also interpreted Section 1407 narrowly.  In VISX, Inc. v. Nidek Co., et al., the District Court for the Northern District of California found that “§ 1407(b) expands a transferee court’s discovery powers only to pretrial depositions,” and that “[h]ad Congress wanted to expand these powers to document subpoenas, it would have said so.”[25]  In In re Monat Hair Care Prod. Mktg., Sales Practices & Prod. Liab. Litig., the District Court for the Southern District of Florida found “the reasoning of In re Packaged Seafood and VISX persuasive” that “Section 1407(b) does not expressly exempt MDL courts from Rule 45’s dictates; rather, it expressly gives MDL courts the discretion to exercise the powers of a district judge in any district only for the purpose of conducting pretrial depositions.”[26]  Thus, given that “Section 1407(b) makes no reference to subpoenas for the production of documents,” the court held that Rule 45 mandated that only the Middle District of Florida had jurisdiction to enforce the nonparty, nonresident subpoena.[27]

That said, courts holding that MDL courts lack jurisdiction over extra-district document subpoenas are in the minority.  Indeed, the 6th Circuit in Pogue noted that while “[a]n argument can be made that the Section 1407(b)’s grant of authority to the MDL judge to oversee nonparty discovery occurring outside of the MDL district does not extend to enforcement of documents-only subpoenas,” the “rationale underlying the MDL statute of ‘just and efficient’ resolution of pretrial proceedings requires the conclusion that Section 1407(b)’s grant of authority applies to both deposition and document-only subpoenas.”[28]  Most other courts that have considered the issue have similarly agreed that “[i]n keeping with the efficiency goals of the MDL statute,” an MDL court’s authority “extends to overseeing subpoenas for documents.”[29]

  1. A Motion to Transfer to the MDL Is a Viable Alternative

If an opposing party has already moved under Rule 45(d) to quash or modify a subpoena in the “district where compliance is required,” or an MDL court declines to exercise jurisdiction over the initial subpoena-related motion, a Rule 45(f) transfer for “exceptional circumstances” to the MDL court can be appropriate.  Although the term “exceptional circumstances” is not defined in Rule 45, the Advisory Committee Notes provide that while the “prime concern” when considering transfer “should be avoiding burdens on local nonparties subject to subpoenas,” in “some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation[.]”[30]  And courts have found “exceptional circumstances warranting transferring subpoena-related motions . . . when transferring the matter is in the interests of judicial economy and avoiding inconsistent results.”[31]

In re Disposable Contact Lens Antitrust Litig. provides an especially applicable analysis of Rule 45(f) and MDL subpoenas.  Here, plaintiffs issued a subpoena duces tecum to a nonresident third party, which ultimately refused to comply with the subpoena.[32]  Plaintiffs moved to enforce the subpoena in the MDL court, which found that it lacked authority to rule on the motion because, under Rule 45, “a party seeking to compel compliance with a subpoena must file its motion in ‘the district where compliance is required.’”[33]  Following the MDL court’s ruling, plaintiffs filed an action in the District Court for the District of Columbia—where compliance was sought—to transfer the subpoena-enforcement motion to the MDL court under Rule 45(f) or, in the alternative, enforce the subpoena.[34]  After engaging in an exacting analysis, the district court found that transfer of the motion to enforce the subpoena to the MDL proceeding was appropriate.

First, the court observed that the “MDL status of the underlying litigation is surely an ‘exceptional circumstance’ that weighs strongly in favor of transfer to the Issuing Court under Rule 45(f), because the same concerns about orderliness and disruption that led to the consolidation of actions as an MDL in the first place arise with respect to pretrial disputes regarding subpoenas issued in the context of that complex litigation.”[35]  Second, the court noted that it was “highly unlikely” that the respondent would need to travel to the MDL court in Florida, as a telephonic hearing on the motion was likely, and thus there was no undue burden to the nonresident respondent.[36]  And lastly, given the that the MDL was a “rather a highly complex case and potentially a class action asserting nationwide antitrust claims against five large corporate defendants,” the district court found that the MDL court was best situated to decide whether the subpoena should be enforced.[37]  Thus, given that the “factors that weigh in favor of transferring this subpoena dispute” were abundant, the district court granted plaintiffs’ motion and transferred the motion to the MDL court.[38]

  1. Conclusion

While the language of Rule 45 suggests that subpoena-related disputes can only be resolved in the “district where compliance is required,” MDL litigants should be aware of the authority granted to MDL courts under Section 1407.  The MDL court is often better suited to resolve such disputes given its extensive knowledge of the facts and science surrounding the litigation and the history of the litigation.  In the event that an MDL court declines to exercise direct jurisdiction over a dispute concerning a subpoena duces tecum, a Rule 45(f) transfer of a motion from the local district to the MDL court is a feasible alternative.  With either approach, MDL litigants can better ensure that complex subpoena-related disputes are resolved by the MDL court in an efficient manner that reduces the potential for inconsistent rulings or duplicative discovery.

[1] In re New York City Mun. Sec. Litig., 572 F.2d 49, 51 (2d Cir. 1978) (quoting H.R. Rep. No. 1130, 90th Cong., 2d Sess.).

[2] In re Air Disaster, 486 F. Supp. 241, 243 (J.P.M.L. 1980).

[3] 28 U.S.C. § 1407(b).

[4] E.g., In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., No. CIV.A. 09-3073JAP, 2009 WL 3681986, at *2 (D.N.J. Nov. 4, 2009); In re Subpoenas Served on Wilmer, Cutler & Pickering & Goodwin Proctor LLP, 255 F. Supp. 2d 1, 1 (D.D.C. 2003).

[5] 238 F. Supp. 2d. 270, 273 (D.D.C. 2002).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. (citing 28 U.S.C. § 1407(b); Man. for Complex Litig. (Third) § 21.424 (2002)) (internal quotations omitted).

[11] Id. at 273-74 (citing In re Corrugated Container Antitrust Litig., 662 F.2d 875, 879 (D.C. Cir. 1981)).

[12] Id. at 275.

[13] Id. at 279.

[14] As noted in the 6th Circuit’s opinion, appeal from exercise of an MDL judge’s authority to act as a judge of the deposition or discovery district “lies in the circuit court embracing that deposition or discovery district.”

[15] U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462, 468 (6th Cir. 2006).

[16] Id. at 468.

[17] Id. at 468-69.

[18] In re: Intel Corp. Microprocessor Antitrust Litig., No. 05-1717-JJF, 2007 WL 9612142, at *3 (D. Del. May 18, 2007), report and recommendation adopted, No. 05-1717-JJF, 2007 WL 9612141 (D. Del. June 14, 2007); see also In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., No. CIV.A. 09-3073JAP, 2009 WL 3681986, at *2 (D.N.J. Nov. 4, 2009) (finding that “most courts which have addressed this issue have concluded that section 1407(b) empowers an MDL transferee court to exercise the powers of any other district court, including the enforcement of subpoenas.”).

[19] 117 F.R.D. 30, 32 (D.P.R. 1987).

[20] 2018 WL 2926581, *3 (D. Kan. June 11, 2018).

[21] See, e.g., In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2325, 2017 WL 1090029 (S.D.W. Va. Mar. 21, 2017); In re Neurontin Mktg., Sales Practices & Prod. Liab. Litig., 245 F.R.D. 55 (D. Mass. 2007); In re Accutane Prod. Liab. Litig., No. 804MD2523T30TBM, 2006 WL 1000311 (M.D. Fla. Apr. 14, 2006).

[22] No. 15-MD-2670-JLS-MDD, 2018 WL 454440, at *2 (S.D. Cal. Jan. 17, 2018) (citing 28 U.S.C. § 1407(b)).

[23] Id.

[24] Id.

[25] 208 F.R.D. 615, 616 (N.D. Cal. 2002).

[26] No. 18-MD-02841, 2020 WL 1950463, at *2 (S.D. Fla. Apr. 23, 2020).

[27] Id.

[28] U.S. ex rel. Pogue, 444 F.3d. at 468 n.2.

[29] In re Photochromic Lens Antitrust Litig., No. 8:10–md–2173–T–27, 2012 WL 12904391, at *2 (M.D. Fla. Dec. 20, 2012) (collecting cases); see also In re Bank of New York Mellon Corp. Forex Transactions Litig., No. 11 CIV. 9175 LAK JLC, 2014 WL 2884726, at *1 (S.D.N.Y. June 26, 2014) (“Despite [Section 1407(b)’s] limiting language as to depositions, however, it is widely accepted that this authority extends to all pretrial proceedings, including governance of non-party, extra-district subpoenas.”).

[30] Rule 45(f), 2013 Advisory Committee Note.

[31] Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014); see also In re Braden, 344 F. Supp. 3d 83, 91 (D.D.C. 2018) (finding that transfer of subpoena-related motion to Southern District of Ohio “is appropriate to avoid disrupting the underlying litigation.”).

[32] 306 F. Supp. 3d 372, 374 (D.D.C. 2017).

[33] Id.

[34] Id.

[35] Id. at 378.

[36] Id. at 379-81.

[37] Id. at 381 (internal quotations omitted).

[38] Id. at 383.

© 2020 Winston & Strawn LLP

For more on subpoenas, see the National Law Review Civil Procedure Law section.

When in Doubt, Cross-Appeal!

The Law Court recently addressed an issue of great importance to appellate practitioners: does a party need to cross-appeal a favorable judgment in order to preserve an argument providing alternate grounds for affirmance, when the lower court rejected that argument? The answer, per the Law Court’s decision, is “yes.” As the Law Court’s decision makes clear, and as my predecessor on this blog has noted, a cross-appeal is the only way to ensure that you will be able to raise the argument on appeal.

The decision, Reed v. Secretary of State, which is also very interesting substantively, involved a challenge to the Secretary of State’s determination that proponents of a citizen initiative had gathered enough signatures to place the initiative on the ballot. The petitioner’s challenge required the Superior Court to interpret statutes, 21-A M.R.S. § 903-E and 4 M.R.S. § 954-A, regulating the activities of notaries. Intervenors in the action argued in the Superior Court that the statutes were unconstitutional. The Superior Court declined to reach that argument, instead ruling in favor of the intervenors on other grounds.

Intervenors did not cross-appeal after the petitioner filed a notice of appeal. Instead, in the Law Court, intervenors argued that the statute was unconstitutional as an alternate grounds for affirmance.

The Law Court did not address intervenors’ argument. Instead, it wrote in a footnote:

We have no reason to address the constitutionality of [Section 903-E or Section 954-A] because . . . none of the parties who appealed from the Secretary of State’s decision ended up arguing that either provision is unconstitutional.

(emphasis added).

The take-away? If the trial court rules against you on any argument you make, cross-appeal if you want to raise that argument before the Law Court!

This is to some degree a peculiarity of Maine courts. Generally, you can raise any argument you want on appeal to sustain a judgment in your favor. The key to determining whether to cross-appeal is usually whether you want a part of the judgment changed. But the Law Court takes a different view. There is some question about whether this is the right rule – after all, usually there is no standing to appeal unless you have been adversely impacted by the judgment. But it is the rule.

©2020 Pierce Atwood LLP. All rights reserved.

For more on legal appeals, see the National Law Review Civil Procedure section.

IMS Insights Podcast: Episode 16-How Attorneys Can Leverage Trial Presentation Consultants to Advance Cases Amid COVID-19

In this episode of the IMS Insights Podcast, we speak with trial presentation advisor Jeff Dahm about utilizing trial presentation consultants amid the COVID-19 pandemic.

 Teresa Barber: Jeff, I want to welcome you. Thank you for being our guest today on the IMS Insights Podcast.

Jeff Dahm: Great. Thanks for having me.

Barber: Tell us a little bit about your background. How did you first become interested in trial presentation?

Dahm: Well, I graduated from college in 1996 and I got a job. I went to the career center. There was no internet in ’96, so I got a job. I went to the career center, found a job at a jury consulting firm as a research analyst and I didn’t know really much about the law and I definitely hadn’t been in a courtroom at that point in my life but I went right in and I worked for a pretty prominent jury consultant setting up jury research projects around the country and it was really fascinating. It was new for me. I didn’t know anything about this and I knew it was for me. I mean I was always a very technical person. I was always setting up computers and helping people with their stuff and their computers and on the emerging edge of computers always but I didn’t really work in computers then.

Dahm: So, when I was working at this jury consulting firm, there was a woman who had her boyfriend was starting up a company that did trial presentation. Well, I didn’t know what trial presentation was, so she’s like, “I know you’d be great with him. Why don’t you go meet him?” So, I went to his office and met him and they hired me and then I started being … Working in trial presentation. So, it was … I made the shift from jury consulting. I mean I knew I liked trial consulting for sure. I knew it was a job for me, I just didn’t think that the jury consulting job was the right fit at that point in my career. So, I used all my technical skills and got this job and so what we did was we started doing trial presentation around the country and it was pretty new in the early 90s.

Dahm: In the mid-90s, it was really new. I mean there wasn’t a lot of trial presentation. It’s like I always had this desire to perform and to be on stage but I have no talent. I can’t sing and I can’t dance but I knew this was my performance. This was my way to be performing because I was really technical and I was really good at being technical and being good under pressure. So, when I started doing this, this satisfied my performance itch that I’ve always had and I loved it and it was just great and I knew that this was going to be my career.

Barber: I was going to say, it sounds like you walked right into the fire and at a really early stage and-

Dahm: I did.

Barber: That role, so there really wasn’t a whole lot of … In terms of best practices and models, you’ve really had to be there at the forefront for a lot of that.

Dahm: Yeah, it was really exciting. It was just … I graduated with a degree in environmental analysis and design and thought I was going to save the world and all of a sudden, I’m in this new career and I was like wow, this is exciting. Traveling the country, setting up courtrooms, working with attorneys. I mean I was 23 years old and this was truly exciting for me. I mean it was just … I was over the moon about this job, this new job I had.

Barber: So, kind of the nexus too of technology, which is a passion, right? And then like you said that so much on the line for presentation in the middle of a trial. What exactly … And I’m sure that it’s evolved too, right? Since the mid-90s, late 90s to today, what are the fundamentals? What does a trial … A hot seat consultant, a trial technician do?

Dahm: Sure. Well, as a basis that hasn’t changed in the 25 years I’ve been in the business, what hasn’t changed is that you’re putting on a show and you’re responsible for everything that the jury and the judge see and it’s a big, big responsibility but that’s your job and so your job is to organize the evidence in your trial presentation software and help the attorney put together the show that you’re going to put on in the courtroom. So, you’ve got to do run throughs, you practice the night before. You make sure you have all of your highlights ready. You make sure you have your deposition clips. It’s putting together any sort of evidence that you would ever need to show a jury and organizing it and being able to call it up really fast in the courtroom and that really hasn’t changed much over the 25 years. That’s the job.

Dahm: I mean sometimes you do less, clients want to do more. Sometimes you do a lot more. Sometimes you’re full throttle. Sometimes you just set it up for them and they go on their own, but it just depends. It’s just all-encompassing in trial for the evidence.

Barber: Very interesting. It sounds like there’s a lot that leads up to it, right? It’s not just showing up and-

Dahm: No.

Barber: You’re putting a presentation forward, how important is a focused strategy for trial presentation? Does that matter?

Dahm: Yeah. Oh sure. I mean every trial presentation consultant has their own sort of method of operation that they do. For me, it’s getting in with the client very early, making sure that they know that I’m here to help them and I’m going to take care of everything, being very organized with anything they give you that they request that you want, you reply back fast. You have to reply fast. You have to get the work done quick and you have to be very efficient and also, you have to be able to speak to attorneys very well. So, that’s the key is you have to be able to roll right into their world and be able to talk and work just as though you were one of them.

Dahm: So, you’re going to different attorneys all around and everybody has different work styles and so the key of a great trial presentation consultant is to be able to meld into the trial team that you’re working with and that is the most important thing. I now schedule a lot of trial techs for courtroom trials and what’s really important in a strategy is a culture fit, to make sure that this tech fits in with you, that you kind of click because I find that the clients that I do the best job for, I click with them. There’s just like a bond, kind of like something you can’t explain like when you meet someone, you click, if you click, then you’re great but I can also make myself click if I have to and that’s the differentiation in a great trial presentation consultant is you blend in, you make yourself blend in in order to let them trust you so that you can be effective in court.

Barber: I was going to say because there’s a lot of trust that gets put in you or in a trial consultant technician because there’s … Really, that attorney has to be able to say, okay, I know that this needs to appear at this point and you’ve got to be able to pick up those cues, so that’s really interesting to have.

Dahm: You have to be able to click, yeah there has to be trust, you’re right. You’re so right that trust is key. Your whole case, their whole case kind of depends on you, what comes up on the screen. So, when you meet these clients the first time, you have to come in there showing them that you can command the room, you can command a presentation and you can get the job done and those are the really key things that I look for in consultants too when we’re placing them with attorneys is they have to be forward. They have to be forward thinkers. They have to be proactive people because those are the ones that do the best in court.

Barber: Yeah. And I want to ask you too, because we’re here, Jeff, in the middle of summer 2020 and we are in a … Really, in a lot of ways, what’s an unprecedented time, a lot of concern everywhere for colleagues, for communities dealing with COVID-19. It’s also the pandemic, we have a global pandemic, placed an unprecedented amount of stress on the court system and we’ve even seen remote trials popping up. First, it was remote hearings, lately remote trials in some places like throughout California. Can you talk to me a little bit about what you’ve been seeing from clients, what you’ve been hearing from the ground and how important it might be for a dedicated trial presentation consultant or someone with that expertise when you’re thinking about what that completely visual and virtual setting … Can you talk to me about what you’re hearing?

Dahm: Yeah, so as I’m sure everybody has realized in the past few months being at home is that most people are not fully comfortable with the scenario of talking to people over a video conference. It’s not natural. It could be exhausting. There’s a lot of other layers that people don’t realize that come with that. As a consultant working around the country, I have been and trial presentation consultants have been working in video conferences, working at this method for years now and this is a very comfortable place for us to be. This is … And also, when you are presenting, because … Okay, so courtrooms that … Most courtrooms are now pushing towards having Zoom hearings, having Skype hearings. This is a really, really common thing that’s happening more and more and I tell you, if a courtroom is not doing it now, they’re going to be doing it soon.

Dahm: This is the way of the immediate future for the next few years and you need to be prepared and when you’re giving an argument, just like in court, there’s a lot of things to think about beyond your argument and you should let a consultant handle that for you. Let your trial presentation consultant run your PowerPoint. You have to let them help and we can display in a video conference the same as we can in court. You can put things up. You can share the screen and this is something that trial techs and trial presentation consultations are good at, manipulating multiple different views for things to go on the screen, coordinating with people and tech. I mean this is our wheelhouse. So, you are doing yourself a huge favor by having the trial presentation consultant on a call for you in a hearing. I mean it’s invaluable as far as I can see.

Barber: Yeah, I was going to ask you, so it sounds like some of the same principles that you apply in trial presentation in a physical courtroom, how, can you talk to us about how you apply those fundamentals and those principles to help clients prepare and move cases along right now?

Dahm: Sure. Well, and I’ve heard this from my clients too, the cases are not going away. Even though, the public … The in-person hearings are not happening, the cases aren’t going away. They’re still moving forward. You’re still going to have to go forward with your discovery. You have to … Your expert witness disclosures, I mean everything is still happening. So, it’s important that you use your trial consultants as you always would to help move your case forward. Send them your video if you have video depositions that need to be prepared. It still has to happen. Let’s say you have to submit your video deposition designations for your trial that’s in July, that still has to happen. These consultants, and we’re ready to go, we are ready to help you just like we always are when you got to be in court. We are just as ready to help you with your online hearing. I mean it’s just as important, so you should treat it that way.

Barber: And we’re seeing … We’re kind of touching on this, you mentioned like just a lot of hearings moving to Zoom or Skype and if we’re not seeing that now, brace for it because it’s coming. So, what tools and resources would you recommend right now for litigators or attorneys just preparing for a virtual in-court scenario, maybe don’t have one scheduled yet but want to be prepared?

Dahm: So, we are all doing our homework here on the presentation side. I know all the trial techs that we work with and also everybody at my firm, other consultants in general, we’re all doing our homework and we’re all making sure that you all can … That the attorneys can do all of their hearings online. I know that we’ve done a lot of Zoom hearings so far. I know that some consultants are creating a virtual courtroom scenario in order to have everybody log in. I mean there’s just … There’s really a lot of work been going on, on the consultant side to make it easier for clients when they do have the hearings. So, reach out to your consultants because they want to help you and they also know what’s happening. They know. They have their pulse on the industry, especially this ever-changing industry as we speak. So, they want to help you and they’re very, very eager to help. Trust me, I’m one of them.

Barber: Jeff, could you … Are you seeing anything about how you think that the pandemic is potentially affecting software that’s used in the firm and the platforms in the industry?

Dahm: Definitely, sure. So, trial presentation software has evolved over the years, but I feel like this is going to cause it to evolve even more. I mean I’ve been testing a lot of software, all of our software that we do use in court to see that it works on a Zoom hearing and it does but I feel like now, the trial presentation software, they’re going to start to create another layer in their software for online hearings because to make sure it’s not buggy because you are still doing a presentation over the internet through another platform and I would think that these trial presentation software companies are going to align with Zoom and create a software to present with Zoom. I mean these are things that I can see coming down the pipe that will be really exciting. I feel like this, as we know, necessity is the mother of invention and this is going to force companies that make trial presentation software to incorporate the video conferencing aspect to it to make it a little easier for us trial presentation consultants.

Dahm: I mean we can do it now. I can display a PowerPoint. I can click through. I mean I’m quite fluid with it on a video call because I do it all the time. I can click through OnCue. I’ve had a couple of Markman so far online that I was able to click through my documents, go back in my PowerPoint. It’s very fluid. However, I see there’s a couple of points that could be better and I know in the next six months, you’re going to start seeing PowerPoint coming out with online things in integrating into their online applications, same with OnCue, Trial Director, pretty much all these things that we use in court, they’re going to have to start talking to Zoom because I know they’re going to want to make it easier for everybody, which is great. So, it’s just really great but us consultants are on that pulse, so if anybody gives me a call, I can tell you what’s going on.

Barber: Hold on, I want to ask you, you raised that suggestion, thinking about the other hot seat operators, the industry, a lot of independent contractors that maybe don’t work with a firm like IMS or The Focal Point, what advice do you have for other folks in the industry right now with so many courts closed?

Dahm: Yeah, so you have to pivot your skills. I mean as a trial presentation consultant, you understand that you have certain skills. You can work under pressure. You can work technically under pressure. You can display evidence fast. I mean these are all things that are going to be needed to do in a video conference hearing too. Assisting in these online hearings is going to be crucial. I mean I think that since this is the beginning of this online hearing generation, clients are going to be slow to react at first, just like in general with the trial presentation consultant.

Dahm: You’re slow to bring people on and then once you have your first hearing and you realize that your PowerPoint is not displayed effectively, then you’re going to give us a call. So, also, a lot of independent trial presentation consultants can record online depositions. That’s a thing that I’ve seen a lot of trial techs that are getting into right now is to assist clients in online depositions. So that’s been a big thing for a couple of my consultants I work with too.

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