In Re: Electronic Books Antitrust Litigation

Filing 2

STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M-10-468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (sjo)

REPORT OF THE
JUDICIAL IMPROVEMENTS COMMITTEE
PILOT PROJECT REGARDING CASE MANAGEMENT
TECHNIQUES FOR COMPLEX CIVIL CASES

October 2011

TABLE OF CONTENTS
Page
Preface................................................................................................................................. ii 
JIC Advisory Committee Roster ........................................................................................ iii 
Subcommittee Rosters ....................................................................................................... iv 
Initial Pretrial Conference Procedures .................................................................................1 
Discovery Procedures ..........................................................................................................4 
Motion Procedures ...............................................................................................................8 
Final Pretrial Conference Procedures ................................................................................10 

Exhibits:
A. Initial Pretrial Conference Checklist
15
B. Joint Electronic Discovery Submission
18
C. Order of Reference to a Magistrate Judge
30

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PREFACE
Beginning in early 2011, the Judicial Improvements Committee of the Southern
District of New York (“JIC”),1 chaired by Judge Shira A. Scheindlin, began to consider a pilot
project to improve the quality of judicial case management. The impetus for this project was
the “Duke Conference” sponsored by the Judicial Conference Advisory Committee on Civil
Rules. Judge John G. Koeltl, a member of the Advisory Committee, was Chair of the Planning
Committee for the Duke Conference. The JIC decided to focus on complex cases and to
develop procedures that would be implemented by the judges of the Court for an eighteenmonth trial period. To assist in this effort the Chair of the JIC appointed an Advisory
Committee of experienced attorneys, representing a broad diversity of the bar to develop
proposals. The Advisory Committee, joined by members of the JIC, formed four
subcommittees to consider and recommend best practices for the management of complex civil
cases. Each of the four subcommittees submitted a report to the JIC which was adopted in
substance by the JIC. The JIC then presented its proposal to the Board of Judges. On
September 28, the Board of Judges approved the proposal, albeit with some suggestions for
implementing the final version of the pilot project. The following report is the pilot project
that the Court has adopted. It will take effect on November 1, 2011. The Court is deeply
grateful to all of the JIC Members and Advisory Committee members who worked so hard to
bring this project to fruition.

1

The members of the Judicial Improvements Committee include: Judge Denise Cote, Judge Thomas
Griesa, Judge Kenneth Karas, Judge John Koeltl, Judge Victor Marrero, Judge Shira Scheindlin, Judge
Sidney Stein, Judge Robert Sweet, Judge James Cott, Judge Theodore Katz, Judge Henry Pitman and Judge
Lisa Smith.

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JIC ADVISORY COMMITTEE ROSTER
Samuel F. Abernethy
Menaker & Herrmann LLP

James Batson
Liddle & Robinson, LLP

Steven Bennett
Jones Day

James Bernard
Stroock & Stroock & Lavan LLP

John Boston
Legal Aid Society

Vince (Vernon) Broderick
Weil, Gotshal & Manges LLP

Susanna Buergel
Paul, Weiss, Rifkind, Wharton & Garrison LLP

Dale Cendali
Kirkland & Ellis LLP

Melanie Cyganowski
Otterbourg, Steindler, Houston & Rosen, P.C.

Maura Grossman
Wachtell, Lipton, Rosen & Katz

Gregory Joseph
Gregory P. Joseph Law Offices LLC

Gregg Kanter
Sprague & Sprague
Marilyn Kunstler
Boies, Schiller & Flexner LLP

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Mei Lin Kwan-Gett
Willkie Farr & Gallagher LLP

Sara Moss
Estee Lauder

Tai Park
Park & Jensen LLP

Jon Pines
Deputy Chief, General Litigation Division of NY City Law Department

Debra Raskin
Vladeck, Waldman, Elias & Engelhard, P.C.

Theodore O. Rogers, Jr.
Sullivan & Cromwell LLP

Scott Rosenberg
Legal Aid Society, General Counsel

Susan Saltzstein
Skadden Arps Slate Meagher & Flom

Paul Saunders
Cravath, Swaine & Moore LLP

Andrew Schilling
Chief of the Civil Division, US Attorneys Office, SDNY

Lorna Schofield
Debevoise & Plimpton LLP

Amy Schulman
Pfizer Corporation

Penny Shane
Sullivan & Cromwell LLP

-iv-

Kent Stauffer
Executive Deputy Attorney General
Guy Miller Struve
Davis Polk & Wardwell LLP

Steve Susman
Susman Godfrey LLP

Ariana Tadler
Milberg, LLP

Mary Kay Vyskocil
Simpson, Thacher & Bartlett LLP

Peter Wang
Foley & Lardner LLP

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SUBCOMMITTEE ROSTERS
Initial Pretrial Case Management Subcommittee
Co-Chairs:
Amy Schulman, Paul Saunders
Committee Members:
Judge John Koeltl, Judge Sidney Stein, Judge Henry Pitman, John Boston, Marilyn
Kunstler, Sara Moss, Andrew Schilling, Penny Shane, Kent Stauffer, Sam Abernethy
Also participating:
Judge Shira Scheindlin

Discovery Subcommittee
Co-Chairs:
Greg Joseph, Debra Raskin
Committee Members:
Judge Thomas Griesa, Judge James Cott, Judge Lisa Smith, Jim Batson, Steven Bennett,
Mei Lin Kwan-Gett, Maura Grossman, Jon Pines, Theodore Rogers, Scott Rosenberg,
Kent Stauffer, Ariana Tadler
Also participating:
Judge Shira Scheindlin

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Motions Subcommittee
Co Chairs:
Susan Saltzstein, James Bernard
Committee Members:
Judge Victor Marrero, Judge Robert Sweet, Gregg Kanter, Tai Park, Guy Struve, Dale
Cendali, Susanna Buergel, Melanie Cyganowski, Lorna Schofield
Also participating:
Judge Shira Scheindlin

Final Pretrial Conference Subcommittee
Co-Chairs:
Steve Susman, Mary Kay Vyskocil
Committee Members:
Judge Denise Cote, Judge Kenneth Karas, Judge Theodore Katz, Vernon Broderick, Peter
Wang, Guy Struve, Andrew Schilling, Paul Saunders
Also participating:
Judge Shira Scheindlin

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I. Initial Pretrial Case Management Procedures
A.

Initial Report of Parties before Pretrial Conference. No later than 7
days before the initial pretrial conference, the parties shall file an Initial Report
that includes the following:
1.

The parties’ positions on the applicable topics of the “Initial Pretrial
Conference Checklist” (see Exhibit A, annexed hereto) including
whether initial disclosures pursuant to Rule 26(a)(1) should be made in
whole or in part and whether there is some readily identifiable document
or category of documents that should be produced immediately in lieu of
initial disclosures.

2.

The parties’ proposed schedule for fact and expert discovery including:
a.
b.

A protocol and schedule for electronic discovery, including a
brief description of any disputes regarding the scope of electronic
discovery.

d.

Whether the parties recommend that expert discovery precede or
follow any summary judgment practice.

e.

B.

.Any recommendations for limiting depositions, whether by
numbers or days of depositions,2 and by the elimination of expert
depositions.

c.

3.

Any recommendations for limiting the production of documents,
including electronically stored information.

Whether the parties agree to allow depositions preceding trial of
trial witnesses not already deposed.

Whether the parties propose to engage in settlement discussions or
mediation and, if so, when would be the best time to do so. The parties
should also identify what discovery should precede such discussions.

Pretrial Conference Procedures. The Court shall make its best effort to hold
an in-person, initial pretrial conference within 45 days of service on any
defendant of the complaint. If the Government is a defendant, the Court shall
make its best effort to schedule the initial conference within 60 days of service.
If a motion to dismiss is pending, the Court may consider postponing the initial
pretrial conference until the motion is decided.

2

Note: In some complex cases the parties have limited depositions by agreeing on a maximum
number of days a party may depose witnesses. The party may use those days to take two half-day or one
full-day deposition per witness.

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1.

Lead counsel for each party must attend.

2.

The Court should address the contents of the Initial Report and the
applicable topics contained in the “Initial Pretrial Conference Checklist”
(see attached Exhibit A) with the parties.

3.

The parties shall provide the Court with a concise overview of the
essential issues in the case and the importance of discovery in resolving
those issues so that the Court can make a proportionality assessment and
limit the scope of discovery as it deems appropriate. The Court may
also wish to consider the possibility of phased or staged discovery.

4.

The Court should consider setting a deadline for any amendments to the
pleadings and joinder of additional parties.

5.

The Court should set a schedule for the completion of fact discovery, the
filing of the Joint Preliminary Trial Report, the Case Management
Conference (see Final Pretrial Conference Procedures), and the
exchange of expert reports. If appropriate, the Court should also
consider setting dates for the filing of dispositive motions and the filing
of the Joint Final Trial Report.

6.

If appropriate, the Court should set a trial-ready date or a trial date
contingent on the resolution of dispositive motions.

7.

If appropriate, the Court should schedule any motion for class
certification and associated discovery.

8.

The Court should consider setting a maximum limit for any adjournment
requests, both as to length and number, whether or not the parties jointly
request an adjournment.

9.

If the parties agree, the Court should confirm that prior to trial the
parties will be permitted to depose any trial witnesses who were not
deposed prior to the filing of the Joint Final Pretrial Report. If the
parties cannot agree on this procedure, the Court should consider
whether to issue such an order.

10.

The District Judge shall advise the parties if it will be referring the case
to a Magistrate Judge and, if so, for what purposes. If the District Judge
makes such a referral for the purpose of pretrial supervision (as opposed
to settlement or the disposition of dispositive motions), the District
Judge and the Magistrate Judge are encouraged to communicate and
coordinate regarding the pretrial progress of the case.

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11.

The Court shall determine whether and when additional pretrial
conferences should be held to address the issues raised in items 4
through 8 above.

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II. Discovery Procedures
A. Stay of Certain Discovery upon Service of Dispositive Motion. Unless the
Court orders otherwise, following service of a motion to dismiss pursuant to
Rule 12(b)(6) or 12(c) (if made immediately after the filing of an answer) of the
Federal Rules of Civil Procedure, discovery of documents, electronically stored
information and tangible things may proceed pursuant to Rule 34 but all other
discovery with respect to any claim that is the subject of the motion is stayed
pending the Court’s decision on the motion.
B. Discovery Disputes Not Involving Assertion of Privilege or Work Product.
Unless the Court determines otherwise, any discovery dispute — other than a
dispute arising in the course of a deposition or involving invocation of a
privilege or work product protection — will be submitted to the Court by letter
as follows:
1. The movant will submit to the Court, in a manner permitted by the
Judge’s Individual Practices, and to opposing counsel by hand delivery,
fax or email, a letter of not more than 3 single-spaced pages setting forth
its position and certifying that the movant has in good faith conferred or
attempted to confer with the party or person failing to make discovery in
an effort to obtain it without court action. All disputes that the movant
intends to raise at that time must be submitted in a single letter.
2. The responding party or person may submit a responsive letter of no
more than 3 single-spaced pages within 3 business days with a copy to
opposing counsel.
3. If the Court permits a reply, it should not exceed 2 single-spaced pages
and should be submitted within 2 business days of the responding letter.
4. The Court will make its best effort to render a decision no later than
fourteen days from its receipt of the final letter. The Court may resolve
the dispute prior to its receipt of the responsive letter if it has otherwise
provided the person or party an opportunity to be heard.

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C. In Camera Sampling of Assertions of Privilege. A party or person who raises
a question as to the assertion of a privilege or work product protection with
respect to documents (including electronically stored information) may request
a ruling from the Court as follows:
1. The requesting party or person will submit to the Court, in a manner
permitted by the Judge’s Individual Practices, and to opposing counsel
by hand delivery, fax or email, a letter of not more than 3 singlespaced pages (a) setting forth its position, (b) certifying that it has in
good faith conferred with the opposing party or person in an effort to
resolve the issues without court action, and (c) indicating whether
there is consent to in camera inspection.
2. If the requestor is the party or person invoking privilege or work
product protection, it may attach to its letter to the Court no more than
5 representative documents that are the subject of its request.
The documents are to be attached only to the copy of the letter directed
to the Court, for in camera review, and not to the copy of the letter
directed to the opposing party or person.
3. Any opposing party or person may submit a responsive letter of no
more than 3 single-spaced pages within 3 business days with a copy to
opposing counsel.
4. If the Court permits a reply, it should not exceed 2 single-spaced pages
and should be submitted within 2 business days of the responding
letter.
5. Unless the Court requires a more extensive submission, within
fourteen days from its receipt of the responsive letter or, if later, its
receipt of the documents, the Court will make its best effort to
determine whether the submitted documents must be produced. The
Court may issue its decision prior to its receipt of the responsive letter
if it has otherwise provided any opposing party or person an
opportunity to be heard.

-5-

D. Documents Presumptively Not to Be Logged on Privilege Log. The
following documents presumptively need not be included on a privilege log:
1. Communications exclusively between a party and its trial counsel.
2. .Work product created by trial counsel, or by an agent of trial counsel
other than a party, after commencement of the action.3
3. Internal communications within (a) a law firm, (b) a legal assistance
organization, (c) a governmental law office or (d) a legal department of a
corporation or of another organization.
4. .In a patent infringement action, documents authored by trial counsel for
an alleged infringer even if the infringer is relying on the opinion of
other counsel to defend a claim of willful infringement.4
E. Privilege Log Descriptions of Email Threads. For purposes of creation of a
privilege log, a party need include only one entry on the log to identify withheld
emails that constitute an uninterrupted dialogue between or among individuals;
provided, however, that disclosure must be made that the e-mails are part of an
uninterrupted dialogue. Moreover, the beginning and ending dates and times (as
noted on the emails) of the dialogue and the number of emails within the
dialogue must be disclosed, in addition to other requisite privilege log
disclosure, including the names of all of the recipients of the communications.
3

See D. Conn. Local Rule 26(e) (“This rule requires preparation of a privilege log
with respect to all documents *** except the following: *** the work product material
created after commencement of the action”). D. Colo. Local Rule 26.1(g)(3)(c), S.D. Fla.
Local Rules Gen Rule 26.1(g)(3)(C), E.D. Okla. Local Rule 26.2(b), and N.D. Okla.
Local Rule 26.2(b) are substantively identical D. Conn. Local Rule 26(e). Note that this
proposal is more limited than these local rules because it does not exempt from logging
documents created by the client at counsel’s suggestion, to avoid abuse.
4

See In re Seagate Tech., 497 F.3d 1360 (Fed. Cir. 2007) (en banc) (reliance on
opinion of counsel does not waive the privilege or work product protection of trial
counsel on the same subject matter); N.D. Cal. Local Patent Rule 3-7(c) (“Serve a
privilege log identifying any other documents, except those authored by counsel acting
solely as trial counsel, relating to the subject matter of the advice which the party is
withholding on the grounds of attorney-client privilege or work product protection.”).
D.N.J. Local Patent Rule 3.8(c), E.D. Mo. Local Patent Rule 3-9(c), W.D. Wash. Local
Patent Rule 140, S.D. Tex. Patent Rule 3-8, E.D. Tex. L. Patent Rule 3-7(b), D. Idaho L.
Patent Rule 3.8, S.D. Cal. Local Patent Rule 3.8(b) and other local patent rules are
substantively identical to N.D. Cal. Local Patent Rule 3-7(c).

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F. Requests for Admission. Unless otherwise stipulated or ordered by the Court,
a party may serve on any other party no more than 50 requests for admission
pursuant to Federal Rule of Civil Procedure 36(a)(1)(A); no such request for
admission may exceed 25 words in length; except that no limit is imposed on
requests for admission made pursuant to Rule 36(a)(1)(B) relating to the
genuineness of any described documents.
G. Subpoenaed Material. Unless the Court orders otherwise, whenever
documents, electronically stored information, or tangible things are obtained in
response to a subpoena issued pursuant to Rule 45 of the Federal Rules of Civil
Procedure, the party responsible for issuing and serving the subpoena shall
promptly produce them to, or make them available for inspection and copying
by, all parties to the action.
H. Joint Electronic Discovery Submission. A joint electronic discovery
submission and proposed Order is annexed as Exhibit B. Among other things, it
includes a checklist of electronic discovery issues to be addressed at the Rule
26(f) conference.
I. Revised Order of Reference to Magistrate Judge. A revised form of Order of
Reference to Magistrate Judge is annexed as Exhibit C. Among other things, it
provides that in the case of urgent discovery disputes — e.g., in mid-deposition
— litigants may approach the assigned Magistrate Judge when the District
Judge is unavailable.

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Motion Procedures
A.

Pre-Motion Conferences.
1. Pre-motion conferences should be held for all motions except motions
for reconsideration, motions for a new trial, and motions in limine. For
discovery disputes, see the procedures set forth at Part II. B, supra.
2. A party intending to file a motion governed by the preceding paragraph
(other than Rule 12(b) motions) must request by letter no longer than 3
single-spaced pages, a pre-motion conference in advance of filing any
such motion. The moving party’s letter shall be submitted at least
7 business days prior to a proposed or scheduled conference date, or at
any time if no such date has been proposed or scheduled. Within 3
business days of receipt of the letter, each opposing party may submit a
written response of no more than 3 single-spaced pages in length. No
further letters will be accepted by the Court. The Court will, as soon as
possible thereafter, hold the pre-motion conference.
3.

4.

B.

The filing of a pre-motion letter shall automatically stay the time by
which the motion must be made. In the event the law imposes a filing
deadline, the requirement of a pre-motion letter and conference will not
apply, unless the Court extends the deadline for filing a motion.
Motions pursuant to Rule 12(b) are subject to a different procedure. The
Court may consider one of the following options: (a) Not requiring a
pre-motion conference; (b) requiring the parties to exchange letters (with
or without a copy to the court) prior to filing a motion to dismiss,
addressing any deficiencies in the complaint, in the hope that such
deficiencies might be cured by the filing of an amended complaint; or
(c) holding a conference after the motion is made at which the plaintiff
will be given an opportunity to either amend the complaint or oppose the
motion. If plaintiff does not choose to amend, the plaintiff shall be
given no further opportunity to amend the complaint to address the
issues raised by the pending motion. In the event there is no
amendment, the Court will determine whether any discovery shall
proceed during the pendency of the motion. The time for opposing the
Rule 12(b) motion will be stayed until the conference, at which time the
Court will schedule the further briefing of the motion.

Page Length for Motions. No memorandum of law in support of or in
opposition to a motion may exceed 25 pages (double-spaced). Any
memorandum in excess of 10 double-spaced pages shall also include a table of
contents and table of authorities. Reply memoranda may not exceed 10 pages.

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Any party may request additional pages by seeking leave of the Court after
having sought the consent of the adverse party or parties.
C.

Oral Argument. Oral arguments should be held where practicable and in the
Court’s view useful, on all substantive motions, unless the parties agree
otherwise. Five calendar days in advance of oral argument, the Court should
consider notifying the parties of those issues of particular concern.

D.

56.1 Statements (Statement of Material Fact). At the request of the parties,
and if approved by the Court, no Local Rule 56.1 Statement shall be filed in
connection with motions made pursuant to Rule 56 of the Federal Rules of Civil
Procedure. If the Court requires that the parties file Rule 56.1 statements, such
statements shall not exceed 20 pages per party.

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IV. Final Pretrial Conference Procedures
A.

Joint Preliminary Trial Report on Close of Fact Discovery. Within 14 days
after the completion of fact discovery, the parties shall file a Joint Preliminary
Trial Report, unless the Court concludes that such a report is not necessary in a
particular case, which shall include the following:
1.
2.

The name, address, telephone number, fax number and email
address of each principal member of the trial team, and an
identification of each party’s lead trial counsel.

3.

A brief statement identifying the basis for subject matter
jurisdiction, and, if that jurisdiction is disputed, the reasons
therefore.

4.

A list of each claim and defense that will be tried and a list of
any claims and defenses asserted in the pleadings that are not to
be tried.

5.

An identification of the governing law for each claim and
defense that will be tried and a brief description of any dispute
regarding choice of law.

6.

The number of days currently estimated for trial and whether the
case is to be tried with or without a jury.

7.

A statement indicating whether all parties have consented to trial
by a magistrate judge, without identifying which parties do or do
not consent.

8.

B.

The full caption of the action.

A brief description of any summary judgment motion a party
intends to file, including a statement identifying whether expert
testimony will be offered in support of the motion.

Case Management Conference Procedure. Within 14 days of the filing of the
Joint Preliminary Trial Report, the Court should make its best effort to hold a
Case Management Conference to discuss the contents of the Joint Preliminary
Trial Report and to finalize the schedule for the remainder of the litigation.
1.

Lead trial counsel for each party must attend.

2.

The parties should be prepared to discuss the substance of any
summary judgment motion any party intends to file. During the

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conference, the Court will determine whether any existing
schedule should be modified, including whether the period for
summary judgment motions will precede or follow expert
disclosures and discovery.
3.

If it has not already done so, the Court should set a schedule for
expert disclosures and discovery, the briefing of any summary
judgment motions, the briefing of any Daubert motions, the date
for the filing of the Joint Final Trial Report and a firm trial date.
a. In the event summary judgment motions will be filed, the
Court should consider providing the parties with its best
estimate of the date by which it expects to render a
decision on the motions and should advise the parties
whether there will be a further opportunity for settlement
discussions or mediation following the decision. The
date that the Court selects during the Case Management
Conference for the filing of the Joint Final Trial Report
shall be no earlier than 28 days following the Court’s
decision on the summary judgment motions. Similarly,
the firm trial date set by the Court at the Case
Management Conference shall be no earlier than 8 weeks
following the Court’s decision on summary judgment
motions.

4.

C.

The Court shall encourage (and, in appropriate cases, may order)
the parties to participate in settlement discussions or mediation
before a forum and by a date chosen by the Court based on its
consultations with the parties during the conference. Such
settlement discussions or mediation efforts shall not stay the
schedule for the completion of the litigation.

Joint Final Trial Report. On the date set at the Case Management Conference,
but in any event not later than 28 days preceding the date set for the
commencement of the trial, the parties shall file a Joint Final Trial Report,
unless the Court concludes that such a report is not necessary in a particular
case, which shall include the following:
1.

In the event that there has been a ruling on summary judgment
motions, a list of any claims and defenses from the Joint
Preliminary Trial Report that the parties had intended to try but
that they will no longer try.

2.

A list by each party of its trial witnesses that it, in good faith,
presently expects to present. The list shall indicate whether the
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witness will testify in person or by deposition, and the general
subject matter areas of the witness’s testimony. In the event that
any such witness has not been deposed, and provided the Court
has previously approved (see Initial Pretrial Case Management
Procedures at 2 ¶ 9), the witness will be made available for
deposition before the commencement of trial. The parties will
also provide an agreement as to how and when they will give
notice to each other of the order of their trial witnesses.
3.

A list by each party of exhibits that it, in good faith, presently
expects to offer in its case in chief, together with any specific
objections thereto other than on grounds of relevancy. Any
objection not included on this list will be deemed waived, other
than for good cause shown. Prior to filing the Joint Final Trial
Report the parties will meet and confer in order to eliminate or
narrow disputes about the admissibility of exhibits, to agree upon
exhibits that can be utilized during opening statements at the
trial, and to facilitate the filing of any in limine motions.

4.

In the case of bench trials, the parties’ recommendation on
whether the direct testimony of fact and expert witnesses who
testify in person at trial will be submitted by affidavit to the
Court in advance of trial.

5.

The parties’ recommendation on the time limits for the length of
the trial, and, if appropriate, the division of time between or
among the parties and the protocol for tracking the time.

6.

All stipulations or statements of fact or law on which the parties
have agreed and which will be offered at trial shall be appended
to the Joint Final Trial Report as exhibits.

7.

An agreed schedule by which the parties will exchange
deposition designations and counter-designations, notify each
other of objections to such designations, consult with each other
regarding those objections, and notify the Court of any remaining
disputes. In any event, the parties must notify the Court of any
remaining dispute no later than 48 hours before the deposition
testimony is offered at trial.

8.

An agreed schedule by which the parties will exchange all
demonstratives not otherwise listed in Paragraph C.3 that the
parties intend to use at trial during opening statements or
otherwise, notify each other of any objections thereto, consult

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with each other regarding those objections and notify the Court
of any remaining disputes.
9.

10.

A brief report on whether the outcome of any settlement
discussions or mediation ordered at the Case Management
Conference impacts any of the claims or issues remaining to be
tried.

11.

D.

The parties’ recommendation on the number of jurors and any
agreement on whether a verdict can be rendered by fewer than all
jurors.

All other matters that the Court may have ordered at the Case
Management Conference or that the parties believe are important
to the efficient conduct of the trial, such as bifurcation or
sequencing of issues to be tried, or use of interim summations,
etc.

Filings to Accompany Joint Final Trial Report. The Joint Final Trial Report
shall be accompanied by the following documents:
1.

2.

Any motions in limine. An in limine motion does not include a
motion for summary judgment or a Daubert motion, which must
be filed pursuant to the schedule fixed under Paragraph B.3.
Opposition to in limine motions must be filed within 7 days; no
reply will be allowed absent leave of court.

3.

Any proposed juror questionnaire.

4.

Any requested questions to be asked by the Court during the
voir dire.

5.

A joint description of the case to be provided to the venire
during the voir dire.

6.
E.

In all bench trials, unless directed otherwise at the Case
Management Conference, each party shall submit a trial
memorandum.

Any proposed substantive instructions on the issues to be tried to
be given by the Court to the jury prior to opening statements.

Final Pretrial Conference Procedures. Subsequent to the filing of the Joint
Final Trial Report, and in no event less than 7 days before the commencement
of trial, the Court shall hold a Final Pretrial Conference which must be attended

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by lead trial counsel for each party. At that Conference the Court shall take the
following actions:
1.

Determine the length of the trial and the division of time
between or among the parties.

2.

Determine the method by which the jury will be selected,
including whether a juror questionnaire will be used and its
contents.

3.

Rule on any disputes among the parties identified in the Joint
Final Trial Report.

4.

Rule, if possible, on any motions in limine that remain
outstanding.

5.

Advise the parties of any substantive instructions it will give to
the jury prior to opening statements.

6.

Notify counsel of a schedule for submission of proposed final
jury instructions.

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EXHIBIT A
INITIAL PRETRIAL CONFERENCE CHECKLIST
Proportionality assessment of “the needs of the case, amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues” (see Rule 26(b)(2)(C) (iii))
1.

Possible limitations on document preservation (including
electronically stored information)

2.

Appropriateness of initial disclosures pursuant to Rule 26(a)(1)
a.

Is there some readily identifiable document or category of
documents that should be produced immediately in lieu of initial
disclosures?

3.

Possibility of a stay or limitation of discovery pending a dispositive
motion

4.

Possibility of communication/coordination between the Magistrate
Judge and District Judge with respect to pretrial matters

5.

Preliminary issues that are likely to arise that will require court
intervention

6.

Discovery issues that are envisioned and how discovery disputes will be
resolved

7.

Proposed discovery including:
a.

limitations on types of discovery beyond those in the Rules (i.e.,
waiver of interrogatories, requests for admission, expert
depositions)

b.

limitations on scope of discovery

c.

limitations on timing and sequence of discovery

d.

limitations on restoration of electronically-stored information

e.

agreement to allow depositions of trial witnesses named if not
already deposed

f.

preservation depositions

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g.
8.

foreign discovery and issues anticipated

Schedule (as appropriate and possibly excluding public agency cases)
including:
a.
b.

date(s) for dispositive motions

c.

date(s) for exchange for expert reports

d.

date(s) for exchange of witness lists

e.

date (s) for Joint Preliminary Trial Reports and Final Joint Trial
Reports

f.
9.

date(s) for completion of discovery

date for Case Management Conference

Issues to be tried
a.

ways in which issues can be narrowed to make trial more
meaningful and efficient

b.

whether there are certain issues as to which a mini-trial would be
helpful

10.

Bifurcation

11.

Class certification issues

12.

ADR/mediation

13.

Possibility of consent to trial before a Magistrate Judge

14.

Pleadings, including sufficiency and amendments, and the likelihood
and timing of amendments

15.

Joinder of additional parties, and the likelihood and timing of joinder of
additional parties

16.

Expert witnesses (including necessity or waiver of expert depositions)

17.

Damages (computation issues and timing of damages discovery)

18.

Final pretrial order (including possibility of waiver of order)

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19.

Possible trial-ready date

20.

Court logistics and mechanics (e.g., communication with the court,
streamlined motion practice, pre-motion conferences, etc.)

21.

The need for additional meet and confer sessions, to continue to discuss
issues raised at the initial conference among counsel.

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EXHIBIT B
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK

,
Plaintiff(s)
-against,
Defendant(s)

)
)
)
)
)
)
)
)
)
)
)
)

No.: _____CV__________
Joint Electronic Discovery Submission No.
___ and [Proposed] Order

One or more of the parties to this litigation have indicated that they believe that relevant
information may exist or be stored in electronic format, and that this content is
potentially responsive to current or anticipated discovery requests. This Joint
Submission and [Proposed] Order (and any subsequent ones) shall be the governing
document(s) by which the parties and the Court manage the electronic discovery
process in this action. The parties and the Court recognize that this Joint Electronic
Discovery Submission No. ___ and [Proposed] Order is based on facts and
circumstances as they are currently known to each party, that the electronic discovery
process is iterative, and that additions and modifications to this Submission may
become necessary as more information becomes known to the parties.
(1)

Brief Joint Statement Describing the Action, [e.g., “Putative
securities class action pertaining to the restatement of earnings for the
period May 1, 2009 to May 30, 2009”]:

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(a)

Estimated amount of Plaintiff(s)’ Claims:
Less than $100,000
Between $100,000 and $999,999
Between $1,000,000 and $49,999,999
More than $50,000,000
Equitable Relief
Other (if so, specify) ____________________________________________

(b)

Estimated amount of Defendant(s)’ Counterclaim/Cross-Claims:
Less than $100,000
Between $100,000 and $999,999
Between $1,000,000 and $49,999,999
More than $50,000,000
Equitable Relief
Other (if so, specify) ____________________________________________

(2)

Competence. Counsel certify that they are sufficiently knowledgeable in matters relating
to their clients’ technological systems to discuss competently issues relating to electronic
discovery, or have involved someone competent to address these issues on their behalf.

(3)

Meet and Confer. Pursuant to Fed. R. Civ. P. 26(f), counsel are required to meet and
confer regarding certain matters relating to electronic discovery before the Initial Pretrial
Conference (the Rule 16 Conference). Counsel hereby certify that they have met and
conferred to discuss these issues.
Date(s) of parties’ meet-and-confer conference(s): ______________________________

(4)

Unresolved Issues: After the meet-and-confer conference(s) taking place on the
aforementioned date(s), the following issues remain outstanding and/or require court
intervention:
Preservation;
Search and Review; Source(s) of Production;
Form(s) of Production; Identification or Logging of Privileged Material;
Inadvertent Production of Privileged Material; Cost Allocation; and/or Other (if
so, specify) __________________________. To the extent specific details are needed
about one or more issues in dispute, describe briefly below.

As set forth below, to date, the parties have addressed the following issues:

-19-

(5)

Preservation.
(a)

The parties have discussed the obligation to preserve potentially relevant
electronically stored information and agree to the following scope and
methods for preservation, including but not limited to: retention of
electronic data and implementation of a data preservation plan;
identification of potentially relevant data; disclosure of the programs and
manner in which the data is maintained; identification of computer system(s)
utilized; and identification of the individual(s) responsible for data
preservation, etc.
Plaintiff(s):

Defendant(s):

(b)

State the extent to which the parties have disclosed or have agreed to disclose
the dates, contents, and/or recipients of “litigation hold” communications.

-20-

(c)

(6)

The parties anticipate the need for judicial intervention regarding the
following issues concerning the duty to preserve, the scope, or the method(s)
of preserving electronically stored information:

Search and Review
(a)

The parties have discussed methodologies or protocols for the search and
review of electronically stored information, as well as the disclosure of
techniques to be used. Some of the approaches that may be considered
include: the use and exchange of keyword search lists, “hit reports,” and/or
responsiveness rates; concept search; machine learning, or other advanced
analytical tools; limitations on the fields or file types to be searched; date
restrictions; limitations on whether back-up, archival, legacy, or deleted
electronically stored information will be searched; testing; sampling; etc. To
the extent the parties have reached agreement as to search and review
methods, provide details below.
Plaintiff(s):

-21-

Defendant(s):

(b)

(7)

The parties anticipate the need for judicial intervention regarding the
following issues concerning the search and review of electronically stored
information:

Production
(a)

Source(s) of Electronically Stored Information. The parties anticipate that
discovery may occur from one or more of the following potential source(s) of
electronically stored information [e.g., email, word processing documents,
spreadsheets, presentations, databases, instant messages, web sites, blogs,
social media, ephemeral data, etc.]:
Plaintiff(s):

-22-

Defendant(s):

(b)

Limitations on Production. The parties have discussed factors relating to the
scope of production, including but not limited to: (i) number of custodians;
(ii) identity of custodians; (iii) date ranges for which potentially relevant data
will be drawn; (iv) locations of data; (v) timing of productions (including
phased discovery or rolling productions); and (vi) electronically stored
information in the custody or control of non-parties. To the extent the
parties have reached agreements related to any of these factors, describe
below:
Plaintiff(s):

Defendant(s):

(c)

Form(s) of Production:

-23-

(1)

The parties have reached the following agreements regarding the
form(s) of production:
Plaintiff(s):

Defendant(s):

(2)

Please specify any exceptions to the form(s) of production indicated
above (e.g., word processing documents in TIFF with load files, but
spreadsheets in native form):

(3)

The parties anticipate the need for judicial intervention regarding the
following issues concerning the form(s) of production:

-24-

(d)

Privileged Material.
(1)

Identification. The parties have agreed to the following method(s) for
the identification (including the logging, if any, or alternatively, the
disclosure of the number of documents withheld), and the redaction of
privileged documents:

(2)

Inadvertent Production / Claw-Back Agreements. Pursuant to Fed R.
Civ. Proc. 26(b)(5) and F.R.E. 502(e), the parties have agreed to the
following concerning the inadvertent production of privileged
documents (e.g. “quick-peek” agreements, on-site examinations, nonwaiver agreements or orders pursuant to F.R.E. 502(d), etc.):

(3)

The parties have discussed a 502(d) Order. Yes

-25-

; No

The provisions of any such proposed Order shall be set forth in a
separate document and presented to the Court for its consideration.

(e)

Cost of Production. The parties have analyzed their client’s data repositories
and have estimated the costs associated with the production of electronically
stored information. The factors and components underlying these costs are
estimated as follows:
(1)

Costs:
Plaintiff(s):

Defendant(s):

(2)

Cost Allocation. The parties have considered cost-shifting or costsharing and have reached the following agreements, if any:

-26-

(3)

(f)

(8)

Cost Savings. The parties have considered cost-saving
measures, such as the use of a common electronic discovery
vendor or a shared document repository, and have reached the
following agreements, if any:

The parties anticipate the need for judicial intervention regarding the
following issues concerning the production of electronically stored
information:

Other Issues:

-27-

The preceding constitutes the agreement(s) reached, and disputes existing, (if any) between
the parties to certain matters concerning electronic discovery as of this date. To the extent
additional agreements are reached, modifications are necessary, or disputes are identified,
they will be outlined in subsequent submissions or agreements and promptly presented to
the Court.

Party:

By:

Party:

By:

Party:

By:

Party:

By:

Party:

By:

The next scheduled meet-and-confer conference to address electronic discovery issues,
including the status of electronic discovery and any issues or disputes that have arisen since
the last conference or Order, shall take place on: ______________.

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The next scheduled conference with the Court for purposes of updating the Court on
electronic discovery issues has been scheduled for _____________ . Additional conferences,
or written status reports, shall be set every 3 to 4 weeks, as determined by the parties and
the Court, based on the complexity of the issues at hand. An agenda should be submitted
to the Court four (4) days before such conference indicating the issues to be raised by the
parties. The parties may jointly seek to adjourn the conference with the Court by
telephone call 48 hours in advance of a scheduled conference, if the parties agree that there
are no issues requiring Court intervention.
Check this box if the parties believe that there exist a sufficient number of e-discovery
issues, or the factors at issue are sufficiently complex, that such issues may be most
efficiently adjudicated before a Magistrate Judge.
Additional Instructions or Orders, if any:

Dated: __________, 20___

SO ORDERED:

United Stated District Judge

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EXHIBIT C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------Plaintiff,
v.
Defendant,

------------------------------------------------------------

x
:
:
:
:
:
:

ORDER OF REFERENCE
TO A MAGISTRATE
JUDGE
(

)(

)

x

The above entitled action is referred to the designated Magistrate Judge for the following
purpose(s):

□

General Pretrial (includes scheduling,
discovery, non –dispositive pretrial motions,
and settlement)

□

Consent under 28 U.S.C. §636(c) for all
purposes (including trial)

□

Specific Non-Dispositive
Motion/Dispute*
____________________
____________________
____________________

□

Consent under 28 U.S.C. §636(c)
for limited purpose (e.g., dispositive
motion, preliminary injunction)
Purpose: ___________________

□

If referral is for discovery disputes for a
specific period when the District Judge is
unavailable, the time period of the referral:

□

Habeas Corpus

□

Referral for discovery disputes requiring
prompt attention at any time when the
District Judge is not immediately available
(e.g. on trial or out of town)

□

Social Security

□

Settlement*

□

Dispositive Motion (i.e., motion requiring
a Report and Recommendation)
Particular Motion: _____________
____________________________

□

Inquest After Default/Damages Hearing

□

All such motions: _____________

*Do not check if already referred for general pretrial.
Dated _____________
SO ORDERED:
United States District Judge

-30-