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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 7thcircuitbar.org.•

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John Maley – jmaley@btlaw.com – 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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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