Federal Bar Update: Pilot program for discovery in employment cases

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FedBarMaley-sigIn the Southern District of Indiana, if you are litigating an adverse-action employment case you might be part of a pilot program that aims to streamline and tailor discovery and scheduling. You will know this upon receipt of an early order in the case indicating that your case is in the pilot program. The nine-page order then sets forth detailed instructions, definitions, instructions and deadlines.

The pilot program is an initiative of the Advisory Committee on the Federal Rules of Civil Procedure and is being utilized in various courts across the country. (The Northern District of Ohio, for instance, is participating.) Highlights of the pilot program order include the following:

First, the order sets forth Initial Discovery Protocols that supersede Rule 26(a)(1) disclosures. Second, the order sets the relevant time period for discovery as beginning three years before the date of the adverse action unless otherwise specified. Third, the order provides that electronically stored information shall be produced in searchable .pdf format with native format versions of ESI to be preserved for possible production for good cause shown. Fourth, the unintentional production of a privileged or work-product document does not constitute waiver.

Fifth, the order has an expedited schedule, starting with plaintiff providing its initial mandatory discovery production due within 30 days of the answer or responsive motion. Plaintiff must produce a listing of 10 items, ranging from claims, charges and unemployment documents to mitigation-related documents and documents concerning the termination of any subsequent employment. Plaintiffs must also list witnesses, categories of damages and whether any disability benefits have been applied for.

Defendants, meanwhile, must also produce documents and information 30 days after the answer or motion to dismiss. Required information is set forth in a 14-point list and includes the plaintiff’s personnel file, policies in effect relevant to the adverse action, relevant job descriptions, compensation and benefit documents, non-privileged investigative documents, and a listing of plaintiff’s supervisors and managers, and decision-makers.

Next, the order has a self-contained “Interim Protective Order” that provides for confidentiality designations and protections and fairly standard procedures. It does not address attorney’s-eyes-only requests and designations, but does state that parties may apply for any further protective order or modification.

Supreme Court decision on class actions

In Standard Fire Ins. Co. v. Knowles, the Supreme Court of the United States recently ruled that class-action plaintiffs cannot evade removal to federal court by stipulating, pre-certification, that they seek damages less than the jurisdictional threshold required for removal. Knowles stipulated in his complaint that “Plaintiff and the Class . . . will seek to recover total aggregate damages of less than five million dollars.” By so stipulating, Knowles sought to evade the jurisdictional minimum of $5 million set forth in the Class Action Fairness Act of 2005.

He was initially successful, as after removal the court remanded the case because of the stipulation and in spite of its finding that the amount in controversy would have exceeded the jurisdictional minimum otherwise. In its unanimous decision, the Supreme Court found that Knowles’ stipulation was not binding on the class he purported to represent, as he could not legally bind members of a proposed class prior to that class being certified. Although the court agreed that an individual could limit the amount in controversy as to himself, that plaintiff could not “resolve the amount-in controversy question [by stipulation] in light of his inability to bind the rest of the class.”

7th Circuit Conference

The 7th Circuit Conference is in Indianapolis this year, from May 5-7. Excellent CLE programs and dinner programs are featured. Register online at•


John Maley – – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.