Opinion
04 Civ. 3365 (RMB) (DFE).
April 22, 2005
MEMORANDUM AND ORDER
The District Judge assigned to this case, Judge Richard M. Berman, has referred this case to me for general pretrial supervision. This means that I will make decisions about the discovery phase of the litigation, but not about motions to dismiss such as motions pursuant to Rule 12(b) or Rule 56.
I enclose a copy of my Standing Order for Discovery Disputes. The Standing Order sets out my rules for disputes about discovery, including disputes about scheduling. I also enclose a copy of my Standing Order for Settlement
On April 21, 2005, I held a telephone conference with Mr. Mazaroli and Mr. Curran. Mr. Curran said that on April 7 he finally obtained the correct third-party summons from our Clerk's Office, and that the summons is now out for services. I said that he has to bear responsibility for the delay from August 2004 to February 2005. He said that C.A.L. Air has told him that it will be represented by an attorney named David Gossin, for whom he has only an e-mail address. The Third-Party Complaint notes that C.A.L. Air carried the cargo from Germany to Illinois. Mr. Curran said that the basis for defendants' claim against C.A.L. Air is a Lufthansa report noting damage to the cargo upon arrival in Chicago. Mr. Mazaroli said he had not received a copy of that report. I directed as follows:
1. Defendants must serve all disclosures required by Rule 26 (a)(1) by April 21, 2005.
2. Defendants must produce a knowledgeable witness for deposition pursuant to Rule 30 (b) (6) between May 16 and May 27, 2005, regardless of whether the third-party defendants are able to attend.
3. I will hold a settlement conference on May 23, 2005 at 2:00 p.m. with plaintiff and defendants (and, if possible, with the third-party defendants).
4. The parties must commence all discovery in time to be completed by May 27, 2005.
Standing Order for Discovery Disputes in Cases Assigned to Magistrate Judge Douglas F. Eaton
¶ 1. Conference requirement. Rule 37(a) (2) (A and B), Fed.R.Civ.P., requires the attorneys to confer in good faith in an effort to resolve or narrow all discovery disputes before seeking judicial intervention. "Confer" means to meet, in person or by telephone, and make a genuine effort to resolve the dispute by determining, without regard to technical interpretation of the language of a request, (a) what the requesting party is actually seeking, (b) what the discovering party is reasonably capable of producing that is responsive to the request, and (c) what specific genuine issues, if any, cannot be resolved without judicial intervention. The exchange of letters between counsel stating positions "for the record" shall not be deemed compliance with this requirement, or with Rule 37 (a) (2) (A and B). Failure to hold a good faith conference is ground for the award of attorney's fees and other sanctions. 28 U.S.C. § 1927; Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1019-20 (2d Cir. 1988).
¶ 2. Depositions.
a. No one may instruct a witness not to answer, except upon grounds of privilege, or as permitted by Rule 30(d)(1), Fed.R.Civ.P. All other objections, including objections as to relevance, may be briefly stated on the record, but the question must be answered.
b. If privilege is asserted, the person claiming privilege must answer the predicate questions necessary to establish the applicability of the privilege. See Local Civil Rule 26.2.
c. Disputes relating to privilege or procedure at a deposition, and applications to terminate or limit a deposition pursuant to Rule 30(d), may be brought to my attention by telephone conference (if I am available) without adjourning the deposition. (NOTE: Telephone conferences are limited to disputes about adeposition taking place that very day. Any other disputes must be submitted by joint letter; see below at ¶ 3.) My telephone number is 212-805-6175. The following procedures apply to such telephone conferences:
(1) All attorneys present at the deposition must participate in the telephone conference by speakerphone or extension telephone.
(2) Unless otherwise directed by me, the witness shall be out of the room during the argument of the issues raised.
(3) The reporter must be available to read the verbatim text of any matters in dispute, and shall record and transcribe the entire telephone conference as part of the record of the deposition.
(4) The parties' time to seek review pursuant to Rule 72(a), Fed.R.Civ.P. of any ruling made during a telephone conference shall commence to run on the date of receipt of the transcript.
¶ 3. All other discovery disputes (including disputes about adjournments).
a. Local Civil Rule 37.2 speaks of a first request for an informal conference with the court; however, in discovery disputes before me (except for disputes about a deposition taking place that very day), you should not bother to request an informal conference. Instead, proceed as follows. Following compliance with ¶ 1, above, counsel must submit a single joint letter, signed by each counsel of record who is a party to the dispute, and giving each counsel's telephone number and fax number. The joint letter should identify each issue which requires judicial intervention, and state the position of each party on the first issue before moving on to any second issue. The joint letter should be faxed to 212-805-6181, provided that the letter is no longer than 12 pages, and provided that a manually signed original is thereafter mailed. (I prefer to be able to review the letter quickly in fax form, even if I may have to wait for exhibits to arrive by mail.) The mailing should enclose the manually signed letter, plus any exhibits. The mailing should also enclose a courtesy copy of the joint letter (but not a courtesy copy of any exhibits). If you send your adversary a draft of your portion of a joint letter and he or she does not send you a responsive portion within 5 business days, you may send your portion to me (with another copy to your adversary, and an explanation of the circumstances). You must wait for the 5 days even if there are fewer than 5 business days before a discovery deadline.
b. I wish to encourage the parties to change their positions and to offer compromises. Hence, each side may re-write or delete portions of its draft position. To avoid unreasonable delay, the parties should confer again and make a genuine effort to produce a final version of the joint letter that each party is willing to sign as a fair statement of its final position.
c. The joint letter must be limited to a statement of what discovery still remains in dispute, and why each party believes it should or should not be ordered. Citation of case law is desirable. It is usually unnecessary to recite the procedural history in detail. It is usually unhelpful to include subjective matters such as opinions about the motives of your adversary.
d. If interrogatories, document requests, or responses are in dispute, the joint letter must enclose the text of the specific items in dispute (and only those items).
e. I will normally decide such disputes on the basis of the joint letter, with no oral argument. If I want affidavits, briefs, or a conference, I will inform counsel.
f. Submissions under ¶ 3 shall be deemed to be motions pursuant to Rule 37 and may provide the basis for me to award expenses and other sanctions.
g. My requirement for a single joint letter applies also to non-parties. If a party foresees that it may have a discovery dispute with a non-party, then it shall serve the non-party with a copy of this Standing Order.
A SETTLEMENT CONFERENCE HAS BEEN SCHEDULED BEFORE JUDGE EATON. . . . .
RE: Indemnity Insurance of North American v. Melno Worldwide Forwarding
DATE: May 23, 2005
TIME: 2:00 p.m.
PLACE: 500 PEARL STREET, COURTROOM 18 A
1. Read Judge Eaton's Standing Order for Settlement Conferences.
2. Fill out the Acknowledgment Form and fax it to 805-6181 AS SOON AS POSSIBLE.
3. Write a confidential, ex parte letter and fax it to 805-6181 the week BEFORE the conference.
Standing Order for All Cases Referred for Settlement to Magistrate Judge Douglas F. Eaton
1. All settlement conferences are "off the record" and all communications to the magistrate judge relating to settlement are confidential.
2. The magistrate judge functions as a mediator, attempting to help the parties reach a settlement. Efficient use of this process requires that counsel and their clients be (1) prepared for the conference and (2) candid with the mediator. I will hold only one conference — this is not a dress rehearsal.
3. The week before the settlement conference (and no later than Friday at 4:00 p.m), counsel for each party must send me a letter, marked "CONFIDENTIAL MATERIAL FOR USE AT SETTLEMENT CONFERENCE," which need not be served on the other parties. Thisex parte letter must not exceed five pages. It should state (1) the history of settlement negotiations; (2) your evaluation of the settlement value of the case and the rationale for it (your confidential "bottom line," not simply an "opening bid"); and (3) any other facts that would be helpful to the mediator in preparation for the conference. To assure receipt before the deadline, I recommend that you send this letter to me by fax — to 212-805-6181.
4. The parties — not just the attorneys — must attend in person. This is essential to the mediation process. It is important that parties hear the adversary's presentation and have the opportunity to speak with the mediator outside the presence of any adversary. If a party lives more than 100 miles from New York City, I will sometimes excuse that party's presence but I will at least require that party to be available by telephone throughout the 3-hour period of a typical settlement conference. Corporate parties or labor unions must send the person with decision-making authority who gives directions to the attorney of record. Where liability insurance is involved, a decision-making representative of each carrier must attend in addition to the insured. This includes each excess carrier unless specifically excused by me at least one week before the conference. Where any government agency is a party, the attorney of record must be accompanied by a knowledgeable representative from the agency.
5. It a party fails to come to the settlement conference with all the required persons (attorney, plus a decision-making employee from the client, plus a decision-making representative from each insurance carrier), that party may be required toreimburse all the other parties for their time and travel expenses.
6. The conference takes place in Courtroom 18A at 500 Pearl Street. Each attorney must be prepared to address the group and me for about 5 minutes, summarizing (1) the most important issues of fact and law, (2) the most recent offer or demand communicated to adverse counsel, and (3) any other matters that may help settlement. The merits of the case are relevant to settlement value, but settlement conferences are not adjudicatory in nature; discussions of legal issues should be simple and straightforward, so that you are clear to your adversary's client.
7. I will also meet separately with each side. In these meetings, the parties and their counsel should be prepared to discuss the reasons for their stated position, the amount of attorneys' fees and litigation expenses incurred to date, and an estimate of the cost of litigating the case to judgment.
8. Telephone requests for adjournment are not entertained. A request for adjournment must, if at all possible, be in the form of a joint letter from the attorneys for all the parties, and must, if at all possible, suggest two alternative dates when all the attorneys and all the clients will be available. In any event, a request for adjournment is inoperative unless it mentions the position of each party with respect to the requested adjournment.
9. Except for the ex parte letter pursuant to ¶ 3, all communications with me or my chambers regarding a pending case must be in writing, with copies to all counsel of record sent by means no less expeditious than that used to communicate with my chambers.
10. If all the parties advise me in writing that the case settled prior to the scheduled conference, I will grant one adjournment of up to two weeks to a date certain. On that date, the parties must attend unless they have filed a stipulation of dismissal with the district judge.
Please complete this form, sign it, and send it by mail or fax to:
Mrs. Helen Lewis, Courtroom Deputy to Douglas F. Eaton United States Magistrate Judge 500 Pearl Street, New York, NY 10007
fax number (212) 805-6181 (fax is preferable).
1. I acknowledge that my client and I must attend a settlement conference in Courtroom 18A at 500 Pearl Street on May 23, 2005 at 2:00 o'clock.
a. The name of my client(s) who will attend the conference is (are) ________________________________________________. Name Title
(You must fill in "a" even if the client wishes to attend by telephone. If the client is not an individual, supply the nameand title of the employee who will attend.)
b. My client will attend by telephone, if Judge Eaton approves, because (CHECK ONE): ________ I hereby certify that my client lives more than 100 miles from New York City. ________ My client is not an individual, and I hereby certify that no knowledgeable employee of my client or of an affiliate of my client lives within 100 miles of New York City.
2. The names of the defendants' insurance carriers are: ___________________________. The names of the employees of each carrier who will attend the conference are: ________________________.
3. I acknowledge receiving a copy of the 2-page Standing Order applicable to all cases referred for settlement to Judge Eaton. I acknowledge that I must fax an ex parte confidential letter to Judge Eaton the week before the conference.
_____________________________________________ Attorney's Name (please print and sign)
Name of first-named plaintiff: _____________________________
Name of first-named defendant: _____________________________
Name of the party represented by me: _____________________________