Category: Civil Procedure

E-Filing is Coming, E-Filing is Coming!

Spreading the news that e-filing is coming might not have quite the same importance as the message delivered by Paul Revere and his fellow riders in 1775 – but e-filing is still worth noting. I attended the Maine State Bar Association winter meeting in January, which gave Maine practitioners a sneak preview of the state courts’ new e-filing system, File & Serve. It was an interesting and informative session.

The tentative plan, as attendees were informed, is to begin the process of rolling out e-filing at the end of this year. As many already know, e-filing is likely to be introduced first for Penobscot and Piscataquis Counties. But, of importance for appellate practitioners, it sounds like the court is also considering including not only the Business Court but also the Law Court in the initial implementation.

We are still waiting to see all of the rules surrounding e-filing, but the system that was previewed at the winter meeting appears to be user-friendly and promises to significantly streamline the process for filing with the Law Court. And, happily, filings will be easily available online (without cost). Also of note, the e-filing system includes a search tool, re:Search, that will make it easy to find previous filings – including Law Court briefs.

These tools will be very helpful for the appellate practitioner. But, it also means that appellate practitioners (as well as any other lawyer), will need to pay attention to the new filing system. As we were reminded, Rule 5.3 of the Maine Rules of Professional Responsibility obligates lawyers to supervise their assistants and ensure compliance with all filing requirements.

So take note: e-filing is coming!

©2020 Pierce Atwood LLP. All rights reserved.

Learn more about e-filing on the National Law Review Administrative & Regulatory law page.

The Impeachment Process: Politics, Procedure and Next Steps

The US House of Representatives is set to vote this week on impeaching President Donald Trump, and the impeachment vote is expected to pass.  This will set the stage for the next step in the impeachment process;  the third-ever Senate impeachment trial.

We thought this would be a good time to recap the steps in the impeachment process to better understand, procedurally, how the impeachment case against President Trump reached this point, and what is expected next.  Also, we wanted to dig into some of the issues which have been brought up as problematic by the Republican minority in the House related to the impeachment process and the structure of the House hearings.

Jeffrey S. Robbins, a litigation partner at the Boston offices of Saul Ewing Arnstein & Lehr LLP, served as Chief Counsel for the Minority (the Democrats) for the United States Senate Permanent Subcommittee on Investigations, and Deputy Chief Counsel for the Minority for the Senate Governmental Affairs Committee during its 1997 investigation into allegations of fundraising improprieties by the Clinton-Gore Administration during the 1996 presidential campaign.  Mr. Robbins was kind enough to share his expertise on past congressional investigations to help sort through some of the procedural issues raised and help us understand if the process, so far, has proceeded in a usual manner.

NLR: Impeachment is a three-step process, beginning with an investigation in the house and then a vote on articles of impeachment, then a trial in the Senate. What kind of evidence is the House looking for during the investigation stage prior to voting on articles of impeachment?

Robbins: The House committees are looking for the strongest quantum of evidence possible that the President engaged in conduct which amounts to an identifiable “crime,” since a conservative reading of the Constitution holds that some form of crime, at least, is necessary for impeachment.

House Republicans have complained about the limited access to closed-door House impeachment investigation and depositions leading up to the House’s impeachment vote should all be public and the transcripts should be released. Access to the House’s investigative hearings has been limited to members of the three House committees involved– Foreign Affairs, Intelligence and Oversight, and Reform which have a majority of Democratic House Members but Republican committee members can participate in the investigation and question the parties being deposed. Intelligence Committee Chairman Adam Schiff, D-Calif., said private sessions are needed to prevent witnesses from hearing each other, the same protocol used by prosecutors in criminal investigations.  House Minority Leader Kevin McCarthy, R-Calif., called Schiff a liar and a partisan leading a witch hunt and that the venerable Intelligence Committee has become the partisan Impeachment Committee.

NLR: How much of the House’s investigation needs to be in the form of public hearings?

Robbins: There is no Constitutional requirement that impeachment hearings be public or private, but as a practical and a political matter, it is obvious that impeachment hearings need to be conducted in public; after all, building public support for impeachment is a sine qua non (an essential condition) of a vote to impeach, let alone a vote to convict. On the other hand, there is nothing remotely nefarious about what the Minority refers to as “closed door” depositions; Congressional investigations routinely utilize depositions, by definition closed to the public, as a device to ascertain which witnesses have relevant evidence and what that relevant evidence is, in order to assess the strength of a “case” and to more effectively organize any public hearings associated with the investigation.

Intelligence Committee Chairman Adam Schiff said private sessions are needed to prevent witnesses from hearing each other. House and Minority Leader Kevin McCarthy said “I can’t even go down there and read the transcript,” alleging that Republicans have not been allowed to cross-examine the hearing witnesses, which is not accurate.

The reality is that Republicans have participated in each deposition, but their role is limited by the Democratic committee majority. Both Republicans and the Democrats get equal time to ask questions.  Forty-seven Republicans from the Intelligence, Foreign Affairs, and Oversight Committees have been allowed to attend and participate in the depositions.

NLR: What actually goes on in Congressional hearings? What is the timeline between the hearings and the public testimony?

Robbins: From personal experience, I can tell you that the preparation to question witnesses in a Congressional investigation is an intense process, made all the more intense by the volume of material that has to be consumed in order to question effectively and by the shortage of time within which to consume it. Here, for example, there is a steady drumbeat of witnesses being called for deposition on only a few days’ notice to all concerned, and then only a week or so between the deposition and the public hearing. The process is made more intense by the fact that there are other staff lawyers, and Members, and communications experts, all of whom quite properly want to weigh in on the thrust of the questioning, the messaging of the questioning, and the like.

In the hearings, according to the Wall Street Journal, Adam Schiff opens with remarks and then invites a Republican counterpart to do the same.  Each party receives a block of time to ask questions, and a timekeeper keeps track and moves the proceedings along.  Rep. Mark Meadows (R., N.C.), told the Wall Street Journal that each party gets equal time.  “There is a clock, with a timekeeper,” he said.  Other Republicans, including Reps. Jim Jordan of Ohio and Scott Perry of Pennsylvania have been attending the hearings regularly.  Besides Mr. Schiff, Reps. Jamie Raskin of Maryland, Sean Patrick Maloney of New York, Eric Swalwell of California and Gerry Connolly of Virginia have been attending for the Democrats.  Eventually, the committee voted down party lines to advance the impeachment proceedings.

Complicating the evidence-gathering process is the lack of cooperation from the White House, including Trump administration officials defying subpoenas.  Per Adam Schiff, the White House isn’t cooperating and is defying several subpoenas, which Schiff predicted would be considered obstruction and additional evidence “of the wrongfulness of the President’s underlying misconduct.”  When the House Leadership unveiled the articles of impeachment on December 10, 2019, they first focused on the Trump’s pressuring of Ukraine to investigate Joe Biden before the 2020 election by delaying a White House meeting and $400 million in US Security Aid, but the second focused on the obstruction related to the investigation into his misconduct.

NLR: What are the consequences if a witness refuses to testify at a hearing, or otherwise ignores a subpoena? 

Robbins: Under law, there are to be consequences to refusal to testify or disobedience of a subpoena to produce documents, in particular, contempt findings that are appropriately enforced by federal courts.

Mr. Schiff, accused by House minority Whip Steve Scalise of “…trying to impeach a president of the United States… behind closed doors,” pointed out that the president’s former attorney, Michael Cohen, pled guilty to lying to Congress out of loyalty to the president, and was recently sentenced to three years in prison as a result. Still, the White House has consistently refused to cooperate with the inquiry, citing executive privilege as justification to keep those subpoenaed from actually appearing under oath. Citing executive privilege is a not-uncommon tactic to prevent disclosure of goings-on at the top end of the executive branch, but it doesn’t always work well for those using it, and the privilege itself remains a cloudy legal concept.

NLR: What privileges, if any, can a witness assert?

Robbins: With respect to privileges, there are, of course, the “Big Three”: the attorney-client privilege, the Executive Privilege, and the Fifth Amendment. When those privileges are invoked, as a practical matter they are beyond being challenged, except in extreme circumstances, and for the purpose of this impeachment proceeding, where the time constraints are what they are, if they are invoked their invocation will effectively block disclosure of evidence.

There have been many examples of witnesses invoking their Fifth Amendment rights to avoid answering questions in Congressional hearings.  One prominent example is the case of Lt. Colonel Oliver North in the hearings around the Iran-Contra affair during Ronald Reagan’s presidency.

NLR: If the House votes to ratify the articles of impeachment, the Senate will hold a trial.  Who acts as a prosecutor in this instance, and who acts for the defense?  How is that determined?

Robbins: Since the House is the indicting authority, it will choose who presents the case for removal to the Senate. It will in all likelihood be one or more members of the House.

By way of reference, for President Andrew Johnson’s impeachment trial in 1868, an impeachment committee was made up of seven members of Congress, led by Thaddeus Stevens.  President Bill Clinton’s impeachment featured a team of thirteen House Republicans from the Judiciary Committee.

NLR: Why does the Supreme Court get involved in impeachment proceedings, and what is their role?

Robbins: As for the role of the Supreme Court, it is the Chief Justice who presides over the trial, per the Constitution, and it is he who will be involved in those proceedings, and not the full Court—at least this has not occurred in our limited experience with impeachment.

While it may seem plain that the Supreme Court would have a larger role in the impeachment proceedings, that’s not truly the case. The chief justice is, of course, given the power to preside of the Senate trial by the Constitution as a part of the doctrine of separation of powers – as Justice Joseph Story argued – removing the Vice President from Senate leadership to uphold the trial’s impartiality. Should there be a conviction in the Senate, and the convicted president were to try and engage the highest court, SCOTUS has already found that the Senate’s impeachment procedures are nonjusticiable, because of Article I’s designation of the Senate as the “sole power to try all impeachments” (Nixon v United States, 1993).

Many thanks to Mr. Robbins for his time and for helping break down these complex issues during a complicated time.

Copyright ©2019 National Law Forum, LLC

Corporate Closedown Does Not Shield Boss From Potential TCPA Culpability

So, your corporation is sued under the Telephone Consumer Protection Act (TCPA). One defense strategy if you are the founder and sole owner: cease operations, terminate your employees, close your offices, formally dissolve the corporation and live in British Columbia. No potential individual exposure for TCPA violations in Alabama – right?

Not so fast, said the United States District Court for the Northern District of Alabama in Eric K. Williams v. John G. Schanck. 2019 U.S. Dist. LEXIS 151778, Case No.:5-15-cv-01434-MHH, decided September 6, 2019. Mr. Williams originally sued Stellar Recovery, Inc., a company founded and solely owned by Schanck, for collection calls made to the plaintiff’s cellphone in Alabama. Mr. Schanck then told the Court in a telephone conference call that “Stellar Recovery had dissolved and did not intend to participate in this lawsuit.” Mr. Williams moved to amend his complaint to add Mr. Schanck individually and Judge Madeline Hughes Haikala granted his motion.

But, wait a minute, countered Mr. Schanck. Service of the amended complaint on me in Vancouver, British Columbia does not afford the Court personal jurisdiction. Furthermore, Mr. Williams is too late because he added me as a defendant after the four-year TCPA statute of limitations had passed. So, Mr. Schanck moved to dismiss under Federal Rules of Civil Procedure (FRCP) 12(b)(2) and 12(b)(6), respectively.

The Court was unconvinced on both counts.

First, on the jurisdictional issue, the Court examined whether Mr. Schanck’s alleged contacts with the State of Alabama were sufficient to satisfy specific jurisdiction (i.e., “contacts within the forum state give rise to the action before the court”). Mr. Williams asserted that Mr. Schanck “guide[d], over[saw], and ratifie[d] all operations of…Stellar” and knew of the “‘violations of the TCPA alleged’ in the complaint and ‘agreed to and ratified such actions of his company.’” Indeed, throughout the complaint, Mr. Williams contended that “Stellar acted on behalf of Defendant Schanck.”

Mr. Schanck did “not challenge the factual allegations concerning his ownership interest in Stellar or his managerial control over the company.” Rather, he contended that the “corporate shield doctrine” precluded the Court from exercising jurisdiction over him. However, Judge Haikala noted that the “express language of the TCPA allows actions against corporate officers who authorize TCPA violations” and Mr. Williams “has alleged just that – that Mr. Schanck directed and authorized the alleged TCPA violations that purportedly occurred in this District.” Motion to dismiss for lack of personal jurisdiction under FRCP 12(b)(2) denied.

Second, the Court also dispensed with the statute of limitations issue. The Court concluded that the claim against Mr. Schanck as an individual arose out of the “conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” Under such circumstances, the claims in the amended complaint could relate back to Mr. Williams original complaint.

But, Mr. Schanck argued, Mr. Williams knew about him and his status in Stellar yet chose only to sue the latter. Therefore, there could have been no mistake on his part about the “identity” of the proper party (i.e., Mr. Schanck) to sue and the FRCP 15(c) requirements regarding the timing of serving Mr. Schanck as a new defendant were not met.

Correcting Mr. Schanck’s application of that requirement, the Court noted that the issue was not about Mr. Williams knowledge, but “whether Mr. Schanck himself knew or should have known that he would be named as a defendant ‘but for an error’” by Mr. Williams. And at this stage, “if Mr. Williams contentions about Mr. Schanck’s involvement with Stellar prove correct,” then Mr. Schanck “reasonably should have known that he would be named as a defendant but for an error.” Motion to dismiss for failure to state a claim under FRCP 12(b)(6) denied.

So some TCPAWorld lessons learned about the solidity of the “corporate” shield when one person allegedly runs the company show.

© Copyright 2019 Squire Patton Boggs (US) LLP

New York’s New Child Victims Act Expands Opportunity for Filing Abuse Claims and The Path for Victims’ Justice

This week, a one-year “revival” period of statute of limitations began for individuals who assert civil claims of child abuse to file claims against institutions and individuals pursuant to New York’s Child Victims Act, even if those claims had already expired and/or were dismissed because they were filed late. The premise behind the Child Victims Act is that children are often prevented from disclosing abuse due to the social, psychological and emotional trauma they experience.

Additionally, the  Child Victims Act, also expands the statute of limitations for bringing criminal claims against alleged perpetrators of child sexual abuse, and  permits alleged victims of these crimes to file civil lawsuits up until they reach age 55. This aspect of the legislation will have a significant impact on the volume of criminal cases, and even more so civil lawsuits, 385 of which were filed in the first hours of the revival period, with hundreds more geared up for filing in the upcoming weeks and months. Indeed, the New York State court system has set aside 45 judges specifically to handle the expected crush of cases.

Institutional Changes Following the New Child Victim’s Act

Religious, educational and other institutions that are committed to providing a safe environment for children should be thinking about how they can implement safeguards against child abuse within their institutions. An important step is keeping internal lines of communication with staff and families open, as well as educating staff and leadership as to their reporting obligations under New York law and on how to provide appropriate support if child abuse is suspected.

The Child Victims Act joins the Sex Harassment Bill also signed into law by Gov. Cuomo as significant changes by New York Legislators involving sexual abuse and harassment in New York State.

©2019 Epstein Becker & Green, P.C. All rights reserved.

Sanctions Imposed for Failure to Preserve Call Recordings

Call RecordingsSec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)

In this case, Plaintiff was sanctioned pursuant to Rule 37(e), as amended on December 1, 2015, for its failure to preserve relevant customer call recordings.

Plaintiff alleged that Defendant had “illegally ‘poached’” its customers and defamed the plaintiff. Defendant, in turn, alleged tortious interference with its contractual relationships and defamation by the plaintiff.  In the course of discovery, Plaintiff produced approximately 150 customer call recordings (out of “thousands”) that were “generally favorable” to it but, when asked, was unable to produce any others and claimed that the recordings were lost, apparently as the result of the “normal operation of a data retention policy.”  Defendant sought sanctions pursuant to amended Rule 37(e).

Taking up the motion, the Court first addressed whether the “newly revised or the former version of Federal Rule of Civil Procedure 37” applied.  Concluding that the revised version was appropriate, the Court reasoned that it was “clearly not impracticable to apply the new rule” and that while it would be “unjust to apply a new rule retroactively when that rule governs a party’s conduct,” Rule 37(e) “does not govern conduct” but rather limits the Court’s discretion to impose particular sanctions, without changing the parties’ duty to preserve as it existed prior to the amendments.

Turning to whether Plaintiff had a duty to preserve, the Court noted that the recordings were destroyed after litigation was ongoing and reasoned that Plaintiff should have known and in fact knew of the calls’ potential relevance, citing its memorandum to employees asking them not to use certain words on calls with Alaskan customers (circulated around the time of the complaint and close in time to being accused by Defendant of defamation during contact with Alaskan customers) and—more importantly—the fact that Plaintiff “flagged the existence of the recordings” in its initial disclosures.

Regarding the threshold question of whether Plaintiff took reasonable steps to preserve, the Court rejected Plaintiff’s argument that its “general litigation hold” was sufficient, despite not encompassing the recordings.  Moreover, the Court noted that “reasonable steps [to preserve] were available,” citing Plaintiff’s admission that the calls could have been extracted to avoid being overwritten and the fact that some recordings were saved.  Recognizing that sanctions are precluded when the information can be restored or replaced through additional discovery, the Court indicated that there was no suggestion that the calls were available elsewhere and thus turned to the question of appropriate sanctions.

First, the Court took up the question of whether the recordings were destroyed with the intent to deprive the other party of the information’s use in the litigation and indicated that based on the “relatively murky record before the Court” regarding the nature of the parties’ discussions surrounding the recordings and their treatment in discovery, it could not conclude that Plaintiff overwrote the recordings with the requisite intent to deprive.  Turning next to the question of prejudice, the Court considered whether the information was available through other means, but reasoned that the call notes and depositions of Plaintiff’s employees were “likely to be far inferior” compared to the calls themselves.  Thus, the Court concluded that Defendant was entitled to a remedy “no greater than necessary to cure the prejudice” as allowed by Rule 37(e)(1).

To address the prejudice suffered by Defendant, the Court ordered that Plaintiff pay Defendant’s reasonable attorneys fees incurred in bringing the motion, that neither party would be allowed to introduce recordings made to or from Plaintiff’s call center absent stipulation or a subsequent order, and that the parties may present evidence related to the lost recordings at trial (although Defendant was barred from arguing that the jury may or should presume that evidence would have been favorable to it). The Court also indicted that it would instruct the jury that Plaintiff was under a duty to preserve the calls, but failed to do so.

ARTICLE BY e-Discovery Analysis and Technology Group of K&L Gates

Copyright 2017 K & L Gates

Kentucky Supreme Court Justice Hughes Nominated For Sixth Circuit Seat

Earlier this year, President Obama announced the nomination of Kentucky Supreme Court Justice Lisabeth T. Hughes for the Sixth Circuit vacancy created by Judge Martin’s retirement.  sixth circuitJustice Hughes served as a judge in various Kentucky courts for nearly a decade before her appointment to the Supreme Court of Kentucky in 2007.  If confirmed, she will join several former state court judges on the Sixth Circuit, including Judge Cook (Ohio), Judge Griffin (Michigan), Judge Donald (Tennessee), and Judge White (Michigan). Two years ago Justice Hughes was being considered for the Court. While all eyes are currently on the appointment of Judge Garland to the Supreme Court, it is questionable whether any circuit-level appointments will clear the Senate at this time.  If she were confirmed, Justice Hughes would join seven other active female judges on the Sixth Circuit, meaning that half of the active judges would be female. We’ll continue to monitor any progress on the confirmation of Justice Hughes.

Article By Larisa Vaysman of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

New York Court Has Sufficient Jurisdiction Over Foreign Bank Where Bank Purposefully Uses Correspondent Bank Account in New York

In a recent New York  District Court decision in Official Comm. Of Unsecured Creditors of Arcapita Bank B.S.C. v. Bahr, Islamic Bank, 2016 U.S. Dist Lexis 42635 (S.D.N.Y. 2016), the court considered whether the use of a correspondent bank account provides a sufficient basis to exercise personal jurisdiction over a foreign bank. There, the Bahraini banks set the terms of investment placements and designated New York correspondent bank accounts to receiver the funds. The banks then actively directed the funds at issue into the New York accounts.

The Committee’s cause of action for the avoidance of preferential transfers arose from the use of the correspondent bank accounts. Hence, the heart of the claim was the receipt of the transferred funds in the New York correspondent bank accounts. The Bahraini banks deliberately chose to receive funds in US dollars and designated the correspondent bank accounts in New York to receive the funds. This deliberate choice made the exercise of jurisdiction constitutional. “Where, as here, the defendant’s in-forum activity reflects its ‘purposeful availment’ of the privilege of carrying on its activities here, the defendant has established minimum contacts sufficient to confer a court with jurisdiction over it, even if the effects of the defendant’s conduct are felt entirely outside of the United States.”

Thus, if a foreign party deliberately choses to use the US banking system to effectuate a transaction and a cause of action arises from that transaction, the foreign party can be forced to defend itself in the US courts.

Article By Eric (Rick) S. Rein of Horwood Marcus & Berk Chartered
© Horwood Marcus & Berk Chartered 2016. All Rights Reserved.

How a Supreme Court Vacancy Actually Works and Its Implications Part 1 of 2

Justice Scalia’s unexpected passing has created political upheaval, judicial uncertainty, and a procedural anomaly for the Supreme Court.  The entire nation is receiving a crash course in Civil Procedure as the Court responds to the vacancy created by Scalia. Barring any massive changes in the political situation, it seems this vacancy is one we’re all going to live with for a while.  It seems prudent, then, to analyze and talk to Supreme Court litigation experts about expectations of this extended vacancy, how it might impact the Court, the cases before the Court, and the country.

There is every indication that Scalia’s vacancy will have a big impact on some major issues.  Boris Bershteyn of  Skadden Arps,1  says, “Indeed, some of the most anticipated cases of this Term—including those involving Texas’s regulation of abortion clinics and the Obama Administration’s immigration initiatives—have been or will be heard after Justice Scalia’s death. “With that in mind, Tejinder Singh of Goldstein & Russell, P.C.,2 says, “Until a replacement Justice is confirmed, cases will either be decided by an eight-member Court or rescheduled for hearing later, depending on what the Court decides would be best for that particular case. There is no rule that the Court has to follow; it can do what it wants.”

What Happens to Cases Currently Before the Court that had Scalia’s Involvement Prior to his Death?

Scalia’s death affects any case where the court had not issued an opinion before he died. As Andy Pincus of Mayer Brown3 says, “Justice Scalia’s death impacts every undecided case on which he sat – because the Court will now have to decide the case without Justice Scalia’s participation.  If he had responsibility for drafting a majority opinion or dissent, another Justice must take over that role.  If his vote was critical to the decision in the case, the Court will have to reconsider the matter and figure out how to decide it – or divide 4-4.”  This will have a greater impact as time goes on.  Any votes Scalia had cast in cases where the opinion had not been issued do not count. Wilmer Hale Appellate Partner Daniel Volchok4 says, “At the time of Justice Scalia’s death, the Court had decided more cases from the October sitting than from any of the later sittings, so in that sense the impact on the later sittings is greater.”

What Happens to Cases During the Vacancy, Where the Court Issues a Ruling but is Divided Evenly?

In the instance where the court is divided evenly, and they agree there is no narrow interpretation they can all agree with, they can ask the case be reargued, or they can issue a short order stating that “the judgment under review is affirmed by an equally divided Court.” This is known as a per curiam opinion, and it is usually issued under the court’s name, instead of a majority and a minority opinion. This split effectively holds up the decision of the lower court, and it does not establish any sort of precedent.  According to Volchok, “Whichever option the Justices take for any particular case, they can do so on their own timetable; they do not have to choose immediately after a 4-4 vote.”

Another option, according to Volchok is “The Court has in the past ordered that cases be re-argued following the appointment of a new Justice.  That occurred, for example, when Justice Samuel Alito succeeded Justice Sandra Day O’Connor.  There’s no reason that couldn’t happen again here.” Less likely, is that a case is just held in limbo after the Court has decided to hear it.  Volchok thinks, “It seems more likely that the Court would simply decide those cases—by a 4-4 tie if necessary—and then take the same issues up again in different cases once the vacancy was filled.”

Some evidence suggests that the court might be taking steps to avoid 4-4 ties.   In Zubik v Burwell, the challenge to the contraceptive mandate in the Affordable Care Act, the court took the somewhat unconventional step of asking for supplemental briefs detailing possible compromises to the case.  Bershteyn says, “the Court’s recent, highly unusual order in Zubik v. Burwell . . . heard during the March sitting—may well be an effort to resolve the case in a way that avoids a 4-4 tie.”

Looking ahead, the case selection might be impacted by the vacancy, especially the longer the vacancy persists.  According to Singh, “the Court itself may become more reticent to take on issues that it believes are likely to end in 4-4 ties. So it may eschew cases raising some of the more controversial constitutional issues until it has a ninth Justice.”

How Does Scalia’s Vacancy Impact Certiorari?

Another area that will be impacted by the vacancy on the court is how the court grants certiorari, or decides which cases to hear.  Every year, the court is asked to hear around 7,000 cases.  And every year, the court hears between 75-80 of those cases.  Four justices must vote “yes” to grant certiorari for a case, and it is very difficult to get a case in front of the court.  Now, there is some speculation that it will become herculean to put a case before the Supreme Court.  Volchok says, “four votes are required for a petition to be granted, and now those four votes must now be found among eight Justices rather than nine.  So just as a statistical matter it will be more challenging for any party seeking Supreme Court review.”  Pincus agrees, saying, “it could well be more difficult to obtain four votes to grant certiorari, because there is one fewer Justice to vote on that issue.”

How will Scalia’s Absence Impact the Decision to Seek Appeal?

Other factors complicate the picture further.  Scalia was often among the majority when cases were decided 5 to 4, and this record could impact some litigants desire to seek a hearing by the court. Singh hypothesizes, “any litigant who has a case where they were relying on Justice Scalia as the fifth vote may now be reluctant to try to take the case up, because winning may now be impossible.”   Additionally, possibly, the decision making process of the court might change when it comes to granting certiorari.  Volchok says, “this is highly speculative, but some or all of the Justices will be less willing to vote to grant a petition if they think there is a good chance the Court will ultimately divide 4-4.  To the extent that phenomenon does exist, it is another reason that securing Supreme Court review in the coming months will be even more difficult than usual.”

Additional Supreme Court Procedural Questions and their Implications will be Addressed in Part Two – Next Week.

Article By Eilene Spear, Jennifer Schaller, Nicole Cudiamat Minnis

Copyright ©2016 National Law Forum, LLC

1 Boris Bershteyn is a litigation partner in Skadden, Arps, Slate, Meagher & Flom LLP’s New York office and practices before the Supreme Court of the United States and other appellate courts. He has also held various government positions including: Acting Administrator, Office of Information and Regulatory Affairs; General Counsel, White House Office of Management and Budget; Special Assistant to the President and Associate White House Counsel and Deputy General Counsel, White House Office of Management and Budget.

2 Tejinder Singh is a Lecturer on Law at Harvard Law School’s Supreme Court Litigation Clinic and a partner at Goldstein & Russell, P.C. in Washington D.C. Mr. Singh has represented various parties and amici before the Supreme Court and lower courts.  In 2014, Tejinder argued and won the Supreme Court case Lane v. Franks, establishing that the First Amendment protects the subpoenaed testimony of public employees. 

3 Andrew J. Pincus is a litigation partner at Mayer Brown LLP’s Washington D.C. office.   Mr. Pincus has argued 25 cases before the Supreme Court of the United States.  He has also authored more than 250 appellate briefs.  Andrew is also a former Assistant to the to the Solicitor General in the United States Department of Justice and co-founded and serves as co-director of the Yale Law School’s Supreme Court Advocacy Clinic.

4 Daniel Volchok is a partner in Wilmer Cutler Pickering Hale and Dorr LLP’s Litigation/Controversy Department, and a member of the Appellate and Supreme Court Litigation Practice Group located in Washington D.C. Mr. Volchok has filed numerous merits and amicus briefs in the US Supreme Court as well as in state and federal appellate courts, and has also participated in successful efforts to obtain or oppose certiorari.

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

  • First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.

  • Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.

  • Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

Article By Russell Kostelak of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

New Federal Rules of Civil Procedure: 3 Must Read Changes

Although the Supreme Court will say they’re simply more “proportional,” it seems they were trying to find a new phrase that would lead to less abuse of the relevancy standard.  This, however, is only one of the significant changes recently doled out in the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP).  It will be interesting to see how these new standards evolve.  With respect to IP litigation and expert discovery, we see three major changes:

Faster

Andale!  The new rules are speeding things up.  Remember when you used to have 120 days to serve the defendant in federal court?  You could file your complaint, sit back, enjoy a cup of java and relax a little. The Supreme Court says, “No longer.”  The previous Rule 4(m) deadline has been shaved down to a mere 90 days ─ a period that can fly by when you’re trying to locate or track down a difficult defendant.  Once the defendant is served, the court must issue a Rule 16(b)Scheduling Order within 90 days, as opposed to the previous 120.  Everything has been expedited. This is significant because the Rule 26(f) (known by many as the “meet and confer”) requirement is tied to this date as well as the commencement of discovery.  Meaning, the new rules have accelerated the first few stepping stones of the litigation process by as much as one to two months. Ultimately, litigants will be required to disclose experts and respond to expert discovery sooner.  For plaintiffs and defendants alike, case strategy, themes and expert opinions will need to be formulated and forged much sooner. If you’re working under a ticking expert clock, we’re here to help.

Stronger

Do you believe the previous “reasonably calculated to lead to the discovery of admissible evidence” was a weak standard?  It appears the Supreme Court did, or at least they believe the standard was too often used to expand the permissible scope of relevant evidence, which was not the intent. The new Rule 26(b) defines discoverable evidence as that which is: a) relevant (simple as that ─ it must be relevant) and b) “proportional to the needs of the case.”  While the latter may seem a little loose, it likely will create a stronger resistance to outlandish, burdensome, disproportional discovery requests, such as “all emails sent within your entire corporate infrastructure since 2004.”  Interestingly ─ while we’re on this topic ─ in the ESI (electronically-stored information) department, the new Rule 37(e) also provides a stronger, more uniform standard for sanctions available if a party fails to properly preserve ESI.  The Committee notes suggest excessive effort was being exerted to preserve ESI once litigation commenced and too much litigation time was spent fighting over arguably-applicable sanctions for failure to preserve ESI.  The new rule allows the court to award curative measures only upon a finding of 1) failure to preserve ESI and 2) prejudice. In addition, the sanctions must be “no greater than necessary to cure the prejudice.”  This is definitely a cleaner, stronger standard that will hopefully lead to less costly and less frequent ESI disputes.

More Stringent

“I have a patent and you infringed it.”  Previously, under Form 18 ─ “Complaint for Infringement” ─ in the FRCP Appendix of Forms, this bare-bones allegation was all you needed to file a complaint for patent infringement.  However, the new rules amendment to Rule 84 has abdicated the Appendix of Forms and while the Committee has clearly stated its intent that this abdication “does not alter existing pleading standards,” it seems many IP attorneys can see the writing on the walls.  If there is no longer a sanctioned form that permits such bare-bones allegations, many believe IP complaints will now need to meet the “plausibility” requirements of the Supreme Court’s long-standing Iqbal and Twombly precedent.  Only time will tell, but IP attorneys should anticipate more motions to dismiss under the plausibility standard and the need to file more detailed complaints for patent infringement.

© Copyright 2002-2015 IMS ExpertServices, All Rights Reserved.
  • See more at: http://www.natlawreview.com/article/new-federal-rules-civil-procedure-3-must-read-changes#sthash.ZGTZHxxb.dpuf