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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. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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