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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. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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