December 2011

Pilot Project Hopes to Tame Complex Civil Cases

Last month, the District Court for the Southern District of New York began an initiative that judges, lawyers and litigants hope will reduce both the cost of and the time spent on complex civil cases. Over the next 18 months, the court will conduct a pilot program following a set of rules and procedures affecting nearly every aspect of the management of cases designated as complex.

"In a complex civil case," Judge Shira A. Scheindlin explains, "the more 'hands on' management there is, the more engaged a judge is in making prompt rulings and resolving discovery issues, the lower the costs and the less time the case will consume from inception to resolution."

Scheindlin was instrumental in developing the pilot. The impetus for the pilot came when she was a panelist at the 2010 Civil Litigation Conference at the Duke University School of Law, where current litigation practice and proposals for improving civil litigation in the federal courts were discussed. Afterward, with Judge John G. Koeltl (S.D. NY), who helped plan the Conference, she began to flesh out how the district court might develop its own procedures.

"There has been this cry from the Bar for more aggressive management of civil cases," she said. "With the momentum from the Conference, Judge Koeltl and I wanted to see what could be done to improve case management in our own court." Scheindlin also chairs the district's Judicial Improvements Committee ( JIC), and with a go-ahead from Chief Judge Loretta Preska, she formed an advisory committee of 31 experienced attorneys, who also would participate, with JIC judges, on four subcommittees.

"My goal was to pick those attorneys with broad constituencies. Attorneys who not only were enthusiastic, but were drawn from small and large firms, who were defendants' lawyers and plaintiffs' attorneys, corporate counsel, and attorneys from the public sector," said Scheindlin.

Beginning in January 2011, and over the next several months, the subcommittees on Initial Pretrial Case Management, Discovery, Motions, and Final Pretrial Conference met to consider and recommend best practices for the management of complex civil cases. Their reports were submitted to the JIC, which in turn presented the proposals to the district's Board of Judges. By September 28, 2011, the proposals, with some suggestions for implementing the final version, were accepted and the pilot plan adopted by the court.

The pilot plan's rules and procedures took effect on November 1, 2011. In some instances, the plan addresses something as simple as page limits for briefs, letters, and discovery requests.

"It's not uncommon to have massive discovery requests, for privilege logs to go on and on, for statements of material fact to be hundreds of pages long," said attorney Gregory Joseph, co-chair of the Discovery Subcommittee. "The recommendations we made are practical suggestions: requests for pre-motion conferences of no more than three singlespaced pages, statements of material fact no longer than 20 pages per party. What we're asking parties to do is cut down on needless cost and focus on the essentials."

Procedures also encourage promptness: Initial pretrial conferences within 45 days of service on any defendant of the complaint (slightly longer if the federal government is a defendant); decisions on discovery disputes within 14 days; agreement on schedules for parties to exchange deposition designations.

An initial pretrial conference checklist, a "fill-in-the blanks" order to manage the electronic discovery process in a case, and an order to refer actions to a designated magistrate judge when the district judge in the case is unavailable, are included with the pilot rules and procedures and also are designed to move a case along.

A standing order designates a case as complex based on nature of suit codes. Attorneys receive a copy of the pilot plan when the order is issued. The plan also is posted on the district's website.

In September, Joseph spoke about the pilot plan at a meeting of the local bar, giving attorneys a preview of what was to come. "The Bar was quite pleased," Joseph relates. "Most didn't want to limit the pilot to just complex civil cases; they wanted a more widespread application."

In fact, some judges on the court have indicated they will adopt a number of the plan's recommendations for use outside of the pilot.

"Every judge has a copy of our report with its recommended case management techniques," said Scheindlin. "It is best practices. But most of all, it is aspirational. Our judges and the Bar hope we all try for the goals we've set. If everyone does, case management will be better."