1. Northern District of California 2017 Judicial Conference
PANEL 5 CIVIL BREAKOUT SESSION
Adventures In Case Management: A Discussion on Innovative Approaches to Managing Litigation
Moderator: The Hon. Haywood S. Gilliam, Jr.
Panelists: The Hon. Elizabeth D. Laporte, Fred Alvarez (Jones Day), Leslie A. Brueckner (Public Justice), and Kathryn Burkett Dickson (Dickson Geesman)

2. The Honorable Elizabeth D. Laporte Kathryn Burkett Dickson
Panelists
The Honorable Haywood S. Gilliam, Jr. Moderator
The Honorable Elizabeth D. Laporte
Fred Alvarez
Partner, Jones Day
Leslie A. Brueckner
Senior Attorney, Public Justice
Kathryn Burkett Dickson
Partner, Dickson Geesman

3. Proposed Amendments to Federal Rule of Civil Procedure 23
Leslie A. Brueckner, Public Justice

4. Overview
August 2016 – The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published proposed amendments to Rule 23 of the Federal Rules of Civil Procedure
Six-Month Public Comment Period closed February 17, 2017
The Civil Rules Advisory Committee is considering whether to send these proposals to the Committee on Rules of Practice and Procedure (“Standing Committee”)
If approved by Standing Committee  transmit to Judicial Conference of the United States, then to U.S. Supreme Court, and ultimately, Congress.
Change in law ~ 3 years (2019/2020)

5. How The Rules Are Amended
STEP 1:
Initial Consideration by The Advisory Committee
STEP 2:
Publication and Public Comment
STEP 3:
Consideration of Public Comments and Final Approval by The Advisory Committee
STEP 4:
Approval By The Standing Committee
STEP 5:
Judicial Conference Approval
STEP 6:
Supreme Court Approval
STEP 7:
Congressional Review

6. Proposed amendments to rule 23
Highlights
Proposed amendments to rule 23

7. Proposed Amendment to Rule 23(c)(2)(B) Electronic Notice
Rule 23(c)(2)(B) would be amended to provide that, for (b)(3) classes, “notice may be by United States mail, electronic means, or other appropriate means…”

8. Proposed Amendment to Rule 23(c)(2)(B) Electronic Notice
Key Language
“Best notice practicable” remains the overarching standard, and courts should remain cognizant that “a significant portion of class members in certain cases may have limited or no access to or the Internet.” Note at 219.
Thus, “[i]nstead of preferring any one means of notice, … courts and counsel should focus on the means most likely to be effective in the case before the court.” Id.

9. Proposed Amendment to Rule 23(e)(1)(A) Frontloading
Rule 23(e)(1)(A) would be amended to require the settling parties in (b)(3) classes to “provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.”
Note: this is a change to the process formally known as “preliminary approval,” a term the Committee no longer embraces.

10. Proposed Amendment to Rule 23(e)(1)(A) Frontloading
Key Language
“The decision to give notice of a proposed settlement to the class is an important event. It should be based on a solid record supporting the conclusion that the proposed settlement will likely earn final approval after notice and an opportunity to object. The amended rule makes clear that the parties must provide the court with information sufficient to enable it to decide whether notice should be sent.” Note at 221 (emphasis added).

11. Proposed Amendment to Rule 23(e)(2) Approval of the Settlement Proposal
Rule 23(e)(2) sets forth the criteria for approval of a proposed settlement of a (b)(3) class.
The proposed rule provides that a court may approve a settlement “only” on finding that it is fair, reasonable, and adequate “after considering whether:
The class representatives and class counsel have adequately represented the class;
The proposal was negotiated at arm’s length;
The relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of the proposed method of distributing relief to the class, including the method of processing class-member claims, if required; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and
class members are treated equitably relative to each other.”

12. Proposed Amendment to Rule 23(e)(2) Approval of the Settlement Proposal
Key Language
The Note makes clear that the Amendment is merely intended to codify and streamline existing practice. It states that “[t]he central concern in reviewing a proposed class-action settlement is that it be fair, reasonable, and adequate.” Note at 22.
Over the years, “courts ha[ve] generated lists of factors to shed light on this central concern…The goal of this amendment is not to displace any of these factors, but rather to focus the court and the lawyers on the core concerns of procedure and substance that should guide the decision whether to approve the proposal.” Note at 22 (emphasis added).

13. Proposed Amendment to Rule 23(e)(5) Class-Member Objections
Rule 23(e)(5) would be amended in several respects to address objections by class members to proposed settlements. Most importantly, Proposed Rule 23(e)(5)(B) would require court approval for payment to an objector or an objector’s counsel in connection with “forgoing or withdrawing an objection or forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.” Proposed Rule 23(e)(5)(B)(i)-(ii). (emphasis added)

14. Proposed Amendment to Rule 23(e)(5) Class-Member Objections
Key Language
Court emphasizes important role that “good-faith” objectors can play in the settlement process: “Objecting class members can play a critical role in the settlement-approval process under Rule 23(e). Class members have the right under Rule 23(e)(5) to submit objections to the proposal. The submissions required by Rule 23(e)(1) may provide information important to decisions whether to object or opt out. Objections can provide the court with important information bearing on its determination under Rule 23(e)(2) whether to approve the proposal.” Note at 26.
Thus, the court notes that “[i]t is legitimate for an objector to seek payment for providing such assistance under Rule 23(h).” Note at 27. (emphasis added)

15. Proposed Amendment to Rule 23(e)(5) Class-Member Objections
Key Language continued…
At the same time, “some objectors may be seeking only personal gain, and using objections to obtain benefits for themselves rather than assisting in the settlement-review process. At least in some instances, it seems that objectors— or their counsel—have sought to extract tribute to withdraw their objections or dismiss appeals from judgments approving class settlements. And class counsel sometimes may feel that avoiding the delay produced by an appeal justifies providing payment or other consideration to these objectors. The court- approval requirement currently in Rule 23(e)(5) partly addresses this concern.” Id. (emphasis added)

16. Proposed Amendment to Rule 23 (f) Interlocutory Appeals

17. Proposed Amendment to Rule 23 (f) Interlocutory Appeals
Key Language
“As amended, Rule 23(e)(1) provides that the court should direct notice to the class regarding a proposed class-action settlement in cases in which class certification has not yet been granted only after determining that the prospect of eventual class certification justifies giving notice. This decision is sometimes inaccurately characterized as “preliminary approval” of the proposed class certification. But it does not grant or deny class certification, and review under Rule 23(f) would be premature. This amendment makes it clear that an appeal under this rule is not permitted until the district court decides whether to certify the class.” Note at 29. (emphasis added)

18. Rule 68 and the “Pick Off” of Named Class Representatives Cy Pres
The Dog That Did Not Bark What Don’t These Proposed Amendments Address (and Why)?
Ascertainability 
Rule 68 and the “Pick Off” of Named Class Representatives
Cy Pres
Settlement Classes
Issue Classes

19. Federal Rule of Civil Procedure 26: Proportionality
Magistrate Judge Elizabeth D. Laporte

20. Federal Rules of Civil Procedure 26(b)(1)
Proportionality
Scope in General
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

21. Federal Rule of Civil Procedure 34: Producing Documents, Electronically stored information, and tangible things, or entering onto Land, for Inspection and Other Purposes

22. Federal Rules of Civil Procedure 34(2)(B)
Responding to Each Item

23. Federal Rules of Civil Procedure 34(2)(C)
Objections
An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

24. United States District Court Northern District of California
Guidelines for The Discovery of Electronically Stored Information

25. Guideline 1.03 (Discovery Proportionality)
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) should be applied to the discovery plan and its elements, including the preservation, collection, search, review, and production of ESI. To assure reasonableness and proportionality in discovery, parties should consider factors that include the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. To further the application of the proportionality standard, discovery requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.

26. United States District Court Northern District of California
Checklist for Rule 26 (f) Meet & Confer Regarding Electronically Stored Information

27. Proportionality and Costs
Checklist for Rule 26 (f)
Proportionality and Costs
The amount and nature of the claims being made by either party.
The nature and scope of burdens associated with the proposed preservation and discovery of ESI.
The likely benefit of the proposed discovery.
Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic discovery vendor or a shared document repository, or other cost-saving measures.
Limits on the scope of preservation or other cost-saving measures.
Whether there is relevant ESI that will not be preserved pursuant to Fed. R. Civ. P. 26(b)(1), requiring discovery to be proportionate to the needs of the case.

28. How has the proportionality requirement been interpreted in the Northern District?

29. What changes, if any, have judges observed as the new Rule 26 is implemented? Has the rule had any effect on discovery disputes? ?

30. Fred Alvarez, Jones Day Kathryn Burkett Dickson, Dickson Geesman
Federal Judicial Center Initial Discovery Protocols for Employment Cases
Fred Alvarez, Jones Day
Kathryn Burkett Dickson, Dickson Geesman

31. Development
Bi-lateral pattern discovery protocols for employment cases
Developed in 2010 – 2011 as a pilot project
Judge Koetel (SDNY) and Becky Kourlis (IAALS) coordinated the group
Developed by compromise and consensus - approximately 20 experienced management and employee attorneys nationwide
Initially to be used in adverse action employment cases, e.g., discrimination and wrongful termination

32. Purposes Focus the initial discovery Streamline the discovery process
Eliminate (or at least reduce) gamesmanship and discovery battles
Provide a solid basis for early settlement efforts

33. Process Protocols replace initial disclosures
Mandatory exchange of required information within 30 days of defendant’s initial responsive pleading
No objections permitted

34. Protocols – Examples Of Required Information from Plaintiff
Facts supporting claims
Calendars, journals, diaries with info re claims
Plaintiff’s current resume
Damages and mitigation efforts and documents
Other claims, lawsuits re same facts
Witnesses and info they have

35. From Defendant Plaintiff’s personnel file
Applicable policies and procedures
Responses to any complaints or charges filed by plaintiff
Any relevant arbitration agreement
Any non-privileged investigation re plaintiff’s complaints
Compensation and benefits information
Identify decision-makers
Documents regarding reasons for adverse action

36. Where are they being used? What do we know?
Approximately 75 district court judges have adopted
2 entire districts -- Oregon and Connecticut
2 Federal Judicial Center follow up studies
2015 comparative study of 500 pilot cases
2016 descriptive, cumulative  study of 552 pilot cases
Oregon
Connecticut

37. How have they worked? 2015 FJC COMPARATIVE STUDY
No real difference in case processing times
Half as many discovery motions
Less likely to have MTD or MSJ filed
More likely to settle

38. How have they worked? 2016 FJC DESCRIPTIVE, CUMULATIVE STUDY
81% -- no discovery motions filed
13% -- 1 discovery motion filed
4%  -- 2 discovery motions filed

39. 2014 Northern District Pilot
Adopted by Judge Gonzalez Rogers
Survey conducted -- only 29 Respondents
(Unscientific) Takeaways?
Produced key documents and information early
Lead to fewer discovery disputes
Facilitates client discussions about discovery
“Do no harm”