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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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