Tag: Civil Procedure

SCOTUS Cert Recap: Civil Procedure, Bankruptcy, And Worker’s Comp

This week, the U.S. Supreme Court granted three of the cert. petitions it considered at its first conference of the new year.

The Court agreed to hear issues involving: 1) the grounds for relief from a final judgment under Federal Rule of Civil Procedure 60(b)(1), 2) the limits on Congress’ authority to apply different bankruptcy rules to different parts of the country, and 3) the scope of states’ authority to apply their workers’ compensation laws to federal facilities.

Such issues are not the most high-profile the Court will address this term, as underscored by the absence of cert-stage amicus briefs in all three of the cases (though this is less uncommon than one might think; by our calculations, about 40 percent of the cert. petitions granted for plenary review last term lacked cert-stage amicus briefs). For governmental entities, bankruptcy practitioners, and federal court civil litigators, however, the cases are worth noting and following.

Rule 60(b) Motions for Relief from Final Judgment

In Kemp v. United States, the Court finally agreed to resolve what the cert. petition characterizes as a 50-year circuit split on whether the “mistake” prong of Rule 60(b)(1) authorizes relief based on a district court’s legal error. Rule 60(b) sets out six categories of reasons why a district court may relieve a party from a final judgment, including “mistake, inadvertence, surprise, or excusable neglect” under 60(b)(1) and “any other reason that justifies relief” under 60(b)(6). The lower courts agree that 60(b)(1) and 60(b)(6) authorize relief for at least some legal errors, but disagree about which of those provisions does so.

And that seemingly picayune distinction can matter. The Federal Rules require all 60(b) motions to be made “within a reasonable time” but set a hard one-year time limit for relief sought on 60(b)(1) grounds. This means that if Rule 60(b)(1) does not encompass legal errors, motions alleging legal errors would fall under Rule 60(b)(6) and would not need to meet the bright-line one-year rule – though such motions would then be subject to the Supreme Court’s additional requirement that 60(b)(6) motions establish “extraordinary circumstances” justifying relief. Accordingly, the question in this case can mean the difference between a timely and untimely 60(b) motion, and civil litigators should be on the lookout for the Court’s answer.

Congress’ Authority to Adopt “Uniform” Bankruptcy Rules

The Court will also take up Siegel v. Fitzgerald, where it will consider the meaning of the Constitution’s Bankruptcy Clause, which authorizes Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The petitioner in this case contends that Congress violated this “uniformity” requirement by dividing the nation’s bankruptcy courts into two slightly different categories. Most operate under the U.S. Trustee program, while six (all in North Carolina and Alabama) operate under the Bankruptcy Administrator program.

In 2017, Congress increased the quarterly fees paid by debtors in large Chapter 11 bankruptcies from $30,000 to $250,000, and while this increase was immediately applicable to all pending and future cases in Trustee districts, it was imposed in Administrator districts nine months later, and then only to future cases. In Siegel the Court will decide whether this difference renders the 2017 statute unconstitutionally “non-uniform” (and, if the Court concludes it is unconstitutional, there will be a further difficult question to tackle concerning how such a defect should be remedied). Notably, even the respondent (who is represented by the U.S. Solicitor General) urged the Court to take this case, observing that though Congress eliminated the difference in 2020, the question presented in this case could affect the status of approximately $324 million in quarterly fees imposed nationwide under the 2017 statute.

In light of such figures, bankruptcy professionals across the country – especially those with cases subject to the 2017 statute – will likely have a strong interest in what the Court will say.

Limits on States’ Application of Workers’ Compensation Laws to Federal Facilities

In United States v. Washington, the Court agreed to hear the federal government’s challenge to a Washington workers’ compensation law that applies exclusively to contractors at a federally owned nuclear-waste cleanup site. Under longstanding principles of intergovernmental immunity, state regulation of federal facilities is generally permissible only where such regulation is clearly authorized by Congress. And the federal government contends that the relevant statute here – which allows states to regulate workers’ compensation at federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State” – does not permit states to single out federal facilities for unique treatment. The state of Washington, meanwhile, counters that states routinely apply different rules to different employers, and it argues that the federal statute simply authorizes such context-sensitive regulation at private and federal facilities alike.

The dispute accordingly consists of competing interpretations of a narrow federal statute (40 U.S.C. § 3172(a)), and it is therefore difficult to see how the case could have much broader significance outside the workers’ compensation context. Contractors working at federal facilities, however, may be interested to see whether the Supreme Court opens the door for future challenges to state workers’ compensation laws.

© 2022 BARNES & THORNBURG LLP

Article By Kian Hudson of Barnes & Thornburg LLP

For more articles on SCOTUS, visit the NLR Litigation / Trial Practice 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.

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.

© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.

What’s Ahead: An Amendment to Rule 30(b)(6) That Requires Parties to Confer

It’s getting more complicated to take and defend depositions because of the COVID-19 pandemic. And now there is a proposed new change to the Federal Rules of Civil Procedure that would require parties to confer before a plaintiff takes the deposition of a corporate representative. Specifically, the Judicial Conference Advisory Committee on Civil Rules has proposed an amendment to Federal Rule of Civil Procedure 30(b)(6) that requires parties to confer in good faith before the deposition takes place about both the topics and the identity of the witness or witnesses.

In some ways, this change isn’t new. Because many attorneys already have this type of discussion with opposing counsel before a corporate representative deposition, and the Advisory Committee notes make it clear that the parties aren’t required to reach an agreement, many think the amendment won’t change much. And its intentions are good. The Advisory Committee developed the amendment to try to avoid disputes about “overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.”

But, as with most things, the devil is in the details. Some fear that the requirement will create more disputes about these depositions than it will prevent.

First, if the parties must confer about the identity of the witness, that could undermine a corporation’s right to choose its witness. The Advisory Committee notes state that the corporation still has the right to choose its deponent, but the rule change could encourage motion practice geared toward preventing a corporation from designating a specific person or trying to force a corporation to designate C-suite executives, rather than the person who the company believes is the right person to testify.

Second, the amendment could incentivize a party to request multiple witnesses so that they can take multiple, seven-hour depositions. These incentives already exist to some extent under the current rules, but the new rules may increase them.

Third, absent from the proposed amendment is any deadline by which the parties must confer or when the discussions should end. The Advisory Committee notes state that “the conference process must be completed a reasonable time before the deposition is scheduled to occur.” Without a set deadline, repeated or eleventh hour requests for a conference could lead to harassment and make it difficult for defense counsel to prepare a witness to testify about ever-changing topics. While this risk can be minimized by communication, it likely can’t be avoided entirely. Finally, the new rule also does not address what happens if the conference does not happen, or if one party refuses to participate.

The proposed amendment to Rule 30(b)(6) is not yet finalized. It must still be approved by the U.S. Supreme Court. If the Court approves, the new rule could take effect as early as December 1, 2020, unless Congress prevents it. If it takes effect, attorneys can expect to spend more time conferring with opposing counsel before a corporate representative witness deposition. Inside and outside counsel for corporations should begin to prepare for this new rule, even while they are facing the additional challenges of today.

© 2020 Schiff Hardin LLP

For more on changes to legal procedures, see the National Law Review Civil Procedure section.

California Judicial Council Adopts Emergency Rules Affecting Unlawful Detainer Actions and More

The Judicial Council of California adopted 11 temporary emergency rules in response to the COVID-19 pandemic affecting eviction proceedings, judicial foreclosures, and statutes of limitations for civil causes of actions, among other things. The rules, adopted April 6, 2020, are effective immediately and apply to all California state courts.

Rules of particular interest:

  •  Emergency Rule 1: Unlawful Detainers
    • Prohibits courts from issuing a summons on an unlawful detainer complaint until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic is lifted. This rule applies to all new unlawful detainer actions – whether or not the eviction action is related to nonpayment of rent for COVID-19 related issues. The only exception is for an unlawful detainer action necessary to protect public health and safety.
  • Emergency Rule 2: Judicial Foreclosures
    • Stays any action for judicial foreclosure and tolls any statute of limitations for filing such action until 90 days after the state of emergency is lifted.
  • Emergency Rule 9: Tolling of Statutes of Limitations for Civil Causes of Action
    • Tolls statutes of limitations for civil causes of action from April 6, 2020, until 90 days after the Governor declares the state of emergency is lifted.
  • Emergency Rule 10: Extension of 5-Year Rule for Civil Actions
    • Extends the five-year deadline to bring a civil action to trial to five years and six months for all actions filed on or before April 6, 2020.
  • Emergency Rule 11: Depositions through Remote Electronic Means
    • Allows a deponent to not be present with the deposition officer at the time of deposition.

© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP

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

ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.

  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.

  • Anybody arrested by ICE has the right to counsel.

  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the  personal immigration issues of an individual shall not take place on company property.

  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.

Public versus Private Property

  • Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .

  • However, back office and areas where customers are not present are considered private property.

Arrest Warrants

  • Warrants come in many varieties.

  • Immigration warrants are civil administrative actions, not criminal.

  • Immigration warrants are signed by ICE Officers, not a Judge.

  • Immigration warrants do not allow ICE to enter private areas without consent.

  • If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.

  • In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.

Your Rights

 Generally speaking if you have a personal encounter with ICE:

  • You should not grant entry to any private areas.

  • You have the right to remain silent.

  • You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.

  • If detained, you have the right to counsel.

  • If you are a foreign national, you have the right to contact your Embassy or Consulate.

  • You do not have to sign any document that you do not understand.

  • If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.

Non-Immigrants must Carry Evidence of Legal Status

Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.

ICE and Foreign Students   

  • ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.

  • ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.

  • ICE may obtain limited private information about F-1 and J-1 students including their home addresses.

UNIVERSITY AB-21 REQUIREMENTS  

In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:

  1. Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
  2. The University Intranet should include the following required information for students, faculty, and employees to access:
    • Notify University of ICE Activities:  Encourage those on campus to report an ICE visit.
    • Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
    • Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
    • ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
    • Legal Assistance: List of organizations that can assist with detention and removal issues.
    • Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible  maintenance of financial aid and a seamless transition back to school.
    • Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.

GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT

  • If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.

  • At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.

  • For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.

  • If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.

  • Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.

California AB 450 Notice Requirements After an ICE I-9 Audit Begins

  • If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.

  • Fines for violation of the notice requirements can be up to $10,000 per violation.

Here is the required posting notice issued by DLSE:
English version 
Spanish version
FAQ’s from DLSE can be found here.

  • In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.

  • In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.

ICE IMAGE Program

IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s.  It can be used as a negotiating tool if a company is audited by ICE.

What does ICE agree to do as part of IMAGE?

  • IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:

  • ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.

  • In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.

  • ICE will not conduct another Form I-9 inspection of the company for a two-year period.

  • ICE will provide information and training before, during and after inspection.

For more information on Image see here.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

For more information see the National Law Review Immigration Law page.