Manual for Complex Litigation, Fourth - United States Courts

1 Manual for Complex Litigation, FourthFederal Judicial Center 2004 Cite asManual for Complex Litigation, Fourth , ____orMCL 4th ____Manual for Complex Litigation, FourthBoard of EditorsJudge Stanley Marcus (Ct. of App., 11th Cir.), chairJudge John G. Koeltl ( ) Judge Barefoot Sanders ( Tex.)Judge J. Frederick Motz (D. Md.)Sheila Birnbaum, Esq. ( , )Judge Lee H. Rosenthal ( Tex.)Frank A. Ray, Esq. (Columbus, Ohio)Judge Fern M. Smith ( Cal.),director, Federal Judicial Center 1999 2003 Federal Judicial Center 2004 The Manual for Complex Litigation, Fourth has been produced under the aus-pices of the Federal Judicial Center.

2 The analyses and recommendations arethose of the Manual s Board of page inserted for correct paginationwhen printing double-sided xviiAcknowledgments xixIntroduction 1 Part I: Overview 5 10. General Principles Judicial Supervision Early Identification and Control Assignment Plan Recusal/Disqualification Other Judges Related Litigation Effective Management Supervisory Referrals to Magistrate Judges and Special Masters Sanctions General Principles Sources of Authority Considerations in Imposing Types Procedure Role of Counsel Responsibilities in Complex Litigation Coordination in Multiparty Litigation Lead/Liaison Counsel and Committees Organizational Structures Powers and Responsibilities Compensation court s Responsibilities Related

3 Litigation Withdrawal and Disqualification 28 11. Pretrial Procedures Preliminary Matters Scheduling the Initial Conference Interim Measures Prediscovery Disclosure Conferences Initial Conference and Orders Case-Management Plan Scheduling Order Class Actions Settlement Subsequent Conferences Attendance Management of Issues Relationship to Discovery Pleading and Motion Practice Identifying, Defining, and Resolving Issues Summary Judgment 46 Manual for Complex Litigation, Discovery Relationship to Issues Planning and Control Discovery Plan/Scheduling Conference Limitations Other Practices to Save Time and Expense Resolution of Discovery Disputes Privilege Claims and Protective Orders Claims of Privilege/Full Protection Limited Disclosure/Protective Orders Allocation of Costs Documents Identification System Preservation Rule 34 Requests/Procedures for Responding Document Depositories Evidentiary Foundation for Documents Discovery of Computerized Data Discovery from Nonparties Depositions Limitations and Controls

4 Cost-Saving Measures Deferred Supplemental Depositions Scheduling Coordination with Related Litigation Control of Abusive Conduct Interrogatories Purposes Limitations Responses Other Practices to Save Time and Expense Stipulations of Fact/Requests for Admission Stipulations of Fact Requests for Admission Statements of Contentions and Proof Requests for Judicial Notice Disclosure and Discovery of Expert Opinions Trial Experts Consulting Experts court -Appointed Experts Special Problems Government Investigations/Grand Jury Materials Summaries Sampling/Opinion Surveys Extraterritorial Discovery Special Referrals court -Appointed Experts and Technical Advisors Special Masters Magistrate Judges Under 28 636(b)(1)

5 Other Referrals Final Pretrial Conference/Preparation for Trial Date and Place of Trial Reevaluation of Jury Demands Structure of Trial Consolidation Separate Trials Special Verdicts and Interrogatories Procedures to Expedite Presentation of Evidence Statements of Facts and Evidence Pretrial Rulings on Objections Disclosure of and Objections to Digital Evidence and Illustrative Aids Limits on Evidence Use of Courtroom Technology to Facilitate Evidence Presentation Proposed Jury Instructions Briefs and Final Pretrial Motions Final Pretrial Order 129 12. Trial Administration Trial Schedule Courthouse Facilities Managing Exhibits Transcripts Conferences During Trial Conduct of Trial Opening Statements Special Procedures for Multiparty Cases Advance Notice of Evidence and Order of Proof/Preclusion Orders The Judge s Role Presentation of Evidence Glossaries/Indexes/Demonstrative Aids Use of Exhibits Depositions Summaries Editing, Designations.

6 And Extracts Presentation/Videotaped Depositions Alternative Means of Presenting Testimony Sequencing of Evidence and Arguments Judicial Control/Time Limits Jury Trials Impaneling the Jury Size of the Venire and Panel Voir Dire Peremptory Challenges Juror Note Taking/Notebooks/Questions Note Taking Juror Notebooks Juror Questions Jury Instructions General Principles Preliminary Instructions Interim and Limiting Instructions Final Instructions Jurors Use of Exhibits During Deliberations Supplemental Instructions and Readbacks Avoiding Mistrial Verdicts Special Verdicts and General Verdicts with Interrogatories Judgment as a Matter of Law Return of Verdict 163 Manual for Complex Litigation, Nonjury Trials Adopted Prepared Statements of Direct Testimony Findings of Fact and Conclusions of Law Procedures When Combined with Jury Trial Inability of Judge to Proceed 166 13.

7 Settlement Trial Judge s Role General Principles Timing/Relationship to Discovery Specific Techniques to Promote Settlement Review and Approval Alternative Processes to Encourage Settlement Special Problems Partial Settlements Agreements Affecting Discovery Side Agreements Ethical Considerations 180 14. Attorney Fees Eligibility for court -Awarded Fees Types of Cases Overview Common-Fund Cases Percentage-Fee Awards Lodestar-Fee Awards Statutory-Fee Cases Proceedings to Award Fees Setting Guidelines and Ground Rules Selecting Counsel and Establishing Fee Guidelines Staffing Maintaining Adequate and Comprehensible Records Submission of Periodic Reports Compensation for Designated Counsel Reimbursement of Expenses Motion for Attorney Fees Contents of the Fee Motion Timing Supporting Documentation and Evidence Discovery Judicial Review/Hearing and Order

8 Judicial Review Hearing and Order 207 15. Judgments and Appeals Interlocutory Appeals When Permitted Proceedings While appeal Pending Entry of Final Judgment Disposition of Materials 213 Part II: Special Problems 215 20. Multiple Jurisdiction Litigation Related Federal Civil Cases Cases in Same court Cases in Different Federal Courts Multidistrict Transfers Under Section 1407 Requests for Transfer During Period of Transfer Remand Coordination Between Courts Related Criminal and Civil Cases Related State and Federal Cases Coordination Identifying the Need and Opportunity Threshold Steps Specific Forms of Coordination Jurisdictional Conflicts 238 21.

9 Class Actions Precertification Case Management Initial Case-Management Orders Precertification Communications with the Proposed Class Standards for Class Certification and Precertification Discovery Certifying a Litigation Class Certifying a Settlement Class Timing of the Certification Decision Precertification Discovery Precertification Discovery into the Rule 23(a) Requirements Precertification Discovery into the Rule 23(b) Requirements Relationship with Other Cases Pending During the Precertification Period Deciding the Certification Motion Certification Hearings and Orders Type and Definition of Class Type of Class Definition of Class Role of Subclasses Role of Issues Classes Multiple Cases and Classes.

10 The Effect on Certification Appointment of the Class Representatives Appointment of Class Counsel Criteria for Appointment Approaches to Selecting Counsel Procedures for Appointment Interlocutory Appeals of Certification Decisions Postcertification Communications with Class Members Notices from the court to the Class Certification Notice Settlement Notice Other court Notices Communications from Class Members Class Members Right to Elect Exclusion Communications Relating to Damage or Benefit Claims Other Communications from Class Members Communications Among Parties, Counsel, and Class Members Postcertification Case Management Discovery from Class Members Relationship with Other Cases Trials 306 Manual for Complex Litigation.