Federal Bar Update: Southern District’s proposed local rule on court appointments

June 1, 2016

FedBarMaley-sigAs most federal practitioners are aware, the Southern District recently published for comment through June 12 its proposed Local Rule 87 on representation of indigent litigants. This Local Rule — which would take effect at the end of this year — has attracted much attention.

The rule will create a voluntary panel of attorneys willing to represent litigants who are unable to afford representation, as well as an obligatory panel of attorneys from which mandatory appointments could be made.

Explanatory notes – The Notes to the Proposed Rule summarize the necessity for this change, and the collaborative effort that has taken place over the last year to craft an informative and fair rule. The initial paragraph of those Notes provides: “The Southern District of Indiana has an especially high volume of pro se and prisoner litigants. Over half of the district’s civil case load is initiated pro se, and over half of the pro se cases are brought by prisoners. This requires the court to frequently recruit counsel to represent pro se litigants pursuant to 28 U.S.C. § 1915(e)(1).”

The Notes continue: “In recent years, the Seventh Circuit has increasingly emphasized that § 1915(e)(1) requires district courts to recruit counsel for pro se litigants in a significant proportion of pro se cases, especially in complex cases brought by prisoners. See, e.g., Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015); Henderson v. Ghosh, 755 F.3d 559 (7th Cir. 2014). Moreover, the Seventh Circuit has stated that ‘courts should strive to implement programs to help locate pro bono assistance for indigent litigants,’ Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015), and noted that the ‘mandatory nature’ of the Northern District of Illinois’s program makes it superior to strictly voluntary programs, Dewitt v. Corizon, Inc., 760 F.3d 654, 659 (7th Cir. 2014).”

The Notes further provide: “Local Rule 87 is the court’s effort, after consultation with a broad range of attorneys who regularly practice in this court, to ensure that the court can recruit counsel in every case in which the law requires it. The court estimates recruited counsel will be necessary in approximately 70 civil cases per year — many involving prisoner litigants. Despite the publication of this proposed Rule, it is the court’s goal to provide representation to indigent litigants, when needed, by way of volunteer counsel, as happens now. The court will rely on the Obligatory Panel only when efforts to find volunteer counsel fall short.”

Before commenting – Before commenting on or criticizing the proposed Local Rule, practitioners should first: (a) carefully read the entire proposed rule; (b) carefully read the comments to the proposed rule (which are included with the Clerk’s Notice on the court’s website; and (c) understand the critical need for this Local Rule, as explained in Chief Judge Young’s transmittal letter for the proposed rule.

As an active participant in drafting and review of the Local Rule, this author has observed first-hand the careful, thoughtful and patient consideration by the court of the clear need for more lawyers to take on more pro bono cases in the court, and the balance of limits on an individual lawyer’s time and resources to take on these cases.

If enough of us step up and serve, no lawyer will ever need to be involuntarily appointed to a case. As a veteran of many such pro bono cases in the court — including multiple jury trials over 25 years — this author can attest that the need for our service is great, with the reward even greater in advocating for an otherwise voiceless client while at the same time assisting the court.

Federal courts and trade secrets – With the passage of the Defend Trade Secrets Act, signed into law on May 11, Congress created a new federal cause of action for trade secret misappropriation with an interstate nexus. The Act expressly provides for a private right of action in amended 18 U.S.C. § 1836, stating, “An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”

The Act provides a federal jurisdictional basis regardless of amount in controversy. § 1836(c). A three-year accrual statute of limitations is provided, § 1836(d). The federal cause of action does not preempt state-law claims, so supplemental claims are likely to be pursued in federal courts as well under 28 U.S.C. § 1367, based on state-law rights (for instance, the Uniform Trade Secrets Act as adopted in Indiana). The Act provides a variety of remedies, including a powerful ex parte seizure process but only in “extraordinary circumstances.” § 1836(b)(2).

Caution – Note that the Act is not yet accurately set forth by all legal publishers, with some not having the amendments reflected in any way, and others having some, but not all, of the amendments. For a copy of the accurate text, see Congress.gov or contact this author.•

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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