Southern District of New York Implements Pilot Program to Govern Pretrial Procedures in Complex Civil Cases

The Judicial Improvements Committee of the Southern District of New York issued a report for a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project is designed to run for 18 months and apply to certain matters designated as complex civil cases. The “complex civil case” designation applies to class action lawsuits, multi-district litigation actions, stockholder suits, most product liability cases, antitrust suits, patent and trademark suits, securities cases, environmental matters and cases involving the constitutionality of state statutes. Although many Southern District of New York judges already had individual procedures in place similar to those implemented by the JIC, some of the more novel aspects of this pilot project are described below.

In cases that are designated for participation in the program, the parties are required to submit, no later than 7 days before the initial pretrial conference, an Initial Report addressing important preliminary procedural and scheduling issues including those listed on the new “Initial Pretrial Conference Checklist,” which is attached as Exhibit A to the JIC Report. Topics that should be addressed include whether initial disclosures should be made in whole or in part, whether discovery should be stayed or limited pending a dispositive motion, and possible limitations on preservation of documents and electronically stored information. For more information on the JIC Report’s treatment of electronic discovery issues, see the Gibbons E-Discovery Task Force’s blog “Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases.”

In cases governed by the pilot program, discovery of documents may proceed pursuant to Rule 34 while a motion to dismiss pursuant to Rule 12(b)(6) or 12(c) is pending, but all other discovery should be stayed pending the Court’s decision on the motion. If appropriate, however, the Court may stay all discovery during the pendency of the motion.
The pilot program also establishes a streamlined procedure for seeking the Court’s intervention in a discovery dispute, which imposes short deadlines on the parties. The moving party must submit to the Court a letter of not more than 3 single-spaced pages setting forth its position and certifying that it has conferred or attempted to confer in good faith with the party that failed to produce the discovery. The responding party may submit a responsive letter within 3 business days, and if the Court permits a reply, it should be submitted within 2 business days of the response. The Court should make its best effort to render a decision no later than 14 days from its receipt of the final letter.

Pre-motion conferences should be held for all motions except motions for reconsideration, motions for a new trial, motions in limine and discovery disputes. Except for the motions listed above and a motion pursuant to Rule 12(b), a party must request a pre-motion conference by letter (maximum of 3 pages single-spaced) in advance of filing the motion. The individual judges are given considerably more discretion with respect to the procedure for filing a motion pursuant to Rule 12(b). With respect to summary judgment motions, the Court may, upon request of the parties, relieve the parties of the obligation to file a Local Civil Rule 56.1 Statement.

With respect to pre-trial submissions, the pilot program has set up a new two-tiered system which requires the filing of a Joint Preliminary Trial Report within 14 days after the completion of fact discovery and a Joint Final Trial Report no later than 28 days before the commencement of the trial or on an earlier date set by the Court. Although some judges in the Southern District have required joint pretrial statements (or proposed orders) to be filed shortly after the close of discovery, they typically have allowed parties 30 days to make this submission. As a result, counsel should take note of the expedited deadline for the Joint Preliminary Trial Report. The Court will make its best effort to hold a Case Management Conference within 14 days of the filing of the Joint Preliminary Trial Report to discuss the contents of the Joint Preliminary Trial Report and to finalize the schedule for the remainder of the litigation. At the conference, the Court also may encourage or even order the parties to participate in settlement discussions or mediation.

If the case proceeds to trial, the Joint Final Trial Report must list any claims and defenses from the Joint Preliminary Trial Report that were obviated by a ruling on summary judgment motions and must provide all other information that is generally required to be included in a joint pretrial statement, such as a list of the witnesses expected to testify and the expected length of the trial. The Joint Final Trial Report also must be accompanied by a trial memorandum, any motions in limine, any proposed juror questionnaire, proposed voir dire questions and a joint description of the case to be provided to the jury pool during voir dire.

Although many of the procedures implemented by the JIC Report are familiar to those who practice frequently before the Southern District of New York, the pilot project constitutes an ambitious attempt to create a uniform set of strict procedures for pretrial practice in complex cases. This uniformity may inject a welcomed consistency and predictability to pretrial practice in the Southern District of New York.

Daniel S. Weinberger is an Associate in the Gibbons Business & Commercial Litigation Department.
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