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Civil Cases - Case Management Procedures

 
 

I intend and hope that the following discussion of how I like counsel to do things in civil cases on my docket is helpful to lawyers, especially those who have not previously appeared before me. Note, however, that these are not orders, rules, or requirements - except where otherwise indicated They are simply suggestions as to what I prefer and what counsel can generally expect. Where I want counsel to act in a certain way, I say so.

 

Case Management, Other Conferences, and Scheduling

 

Within seven weeks of filing of a complaint, chambers will usually contact counsel to arrange an informal initial telephone conversation about the case. That conference will typically cover the status of service of process, likely appearance of defense counsel if there is at yet no appearance, and otherwise give counsel the opportunity to inform me generally about the case. If counsel so desire, I will set a timetable for the case without the need for a formal case management conference.

 

If my initial review of the complaint and other filings indicates a formal case management conference may be worthwhile, the Clerk will mail the notice about one week after the defense files a responsive pleading. The conference will follow in about four weeks .

 

Any attorney desiring to have an informal conversation with the court, a case management conference, or other nonscheduled conference should notify counsel for each party and send the request to the Courtroom Deputy at JudgeCarr_Chambers@ohnd.uscourts.gov.

 

The case management conference notice will indicate the tentative track designation. As a general rule, the designation will depend on the apparent complexity of the case, how long it will likely take get ready for trial, and length of trial. Thus, I will usually designate cases that appear to require a trial of

  • Two to three days: Expedited, with a trial date within nine to twelve months;

  • Up to two weeks: Standard with a trial date within twelve to eighteen months;

  • More than two weeks: Complex, with a trial date within eighteen to twenty-four months.

 

 

After consultation with counsel, I may bifurcate trial on liability and trial on damages if doing so appears likely to save time and expense.

 

Before the case management or other status/scheduling conference, counsel in multi-issue or complex cases should discuss whether it is useful to accelerate motion practice or to set separate trials of critical or possibly dispositive issues.

 

Unless there is substantial disagreement as to the scope of discovery, counsel need not restrict discovery to the limits set in the Federal Rules of Civil Procedure or our Local Rules. Counsel may take the discovery that they reasonably and in good faith believe necessary to prepare for motion practice and trial. If a dispute about the extent or scope of discovery arises, promptly notify my chambers pursuant to Local Civ. R. 37.1.

 

Before the case management conference, counsel should confer about the case and: a) comply informally with Local Civ. R.16.3(b)(3), especially with regard to possible settlement, b) prepare Rule 26 disclosures, and c) devise a tentative timetable for discovery relating to motion practice and other discovery, motion practice, and trial.

 

I schedule most case-management, status/scheduling, and other pretrial conferences for a half hour on Mondays. If counsel believe we will need more time to address all likely issuesl, notify the Courtroom Deputy promptly.

 

Unless the case management conference notice states otherwise, out-of-town counsel (i.e., counsel outside Lucas County) and the parties need not attend the case management conference in person. In any event, whether in person or by phone, lead counsel must participate unless excused before the conference. Chambers will call participating counsel at the telephone number on the docket sheet. (Notify the her if she should call a different number). In multi-party cases, Chambers will arrange for a bridge line and notify counsel accordingly.

 

If any party wants to attend a conference in person, notify opposing counsel of that request. If there is a disagreement, contact chambers.

 

Counsel wishing to raise at the case management conference specific matters that do not usually arise at an initial pretrial conference should notify chambers and opposing counsel before the case management conference.

 

I encourage counsel to begin discovery, to the extent that they can do so by agreement. as promptly as possible, without waiting for the case management conference.

 

At the case management conference I will schedule all significant events in the case, including a firm trial date.

 

Where summary judgment practice may involve Daubert issues, I try to schedule briefing, hearing, and resolution of those issues before briefing on the merits of the summary judgment motion(s).

 

Be ready to discuss possible settlement at the case management and all other pretrial conferences.

 

I often set cases for an initial settlement conference as promptly as reasonably possible, taking into consideration the need for some initial – but limited – discovery before the settlement conference.

 

I typically set two discovery deadlines: one for completion of discovery relating to summary judgment motions and the other for completion of all other discovery.

 

2. Pro Hac Vice Status

 

Unless opposing counsel objects, counsel may move for pro hac vice admission orally at the case management conference; I usually do not require a written motion, etc.

 

Counsel admitted pro hac vice must review the Local Rules, especially the Local Civ. R. 26.1, 26.2 and 37.1, relating to discovery and discovery disputes.

 

As a convenience to the court and counsel, lawyers appearing pro hac vice normally should engage local co-counsel, who should file an appearance, so that local counsel will receive copies of notices, orders, and opinions. If counsel appearing pro hac vice is lead counsel, pro hac counsel should keep local counsel informed about all principal developments in the case and copy local counsel with substantive correspondence with the client and between counsel for the parties, motions, etc. In addition, pro hac counsel should consult with local counsel about local practices and procedures regarding discovery, motions, settlement, and trial.

 

Local counsel should, at a minimum, refer out-of-town counsel to the Local Rules and this website. It is particularly important that local counsel call attention to my practices concerning discovery disputes and expectations concerning the conduct of discovery generally and depositions in particular.

 

3. Electronic Filing

 

File all pleadings and briefs electronically. Do not scan pleadings and briefs (except those in removed cases from a state court); instead, file electronically in a format that enables searching, copying, and downloading from CM/ECF).

 

Counsel may manually file exhibits exceeding fifteen pages rather than scanning them into the system.

 

The Courtroom Deputy (419 213 5565) is available to answer any questions about electronic filing.

 

All counsel of record must be prepared to file and receive pleadings electronically. Inability to do so does not constitute good cause for failure to respond to any electronically filed pleading, notice, or order.

 

Electronic filing requirements normally do not apply where a party is proceeding pro se. Pro se litigants may, however, obtain leave of court to file and receive filings electronically.

 

4. Consent to Trial or Other Final Disposition Before the United States Magistrate Judge

 

I encourage counsel to consider consenting the United States Magistrate Judge's jurisdiction to conduct all proceedings, including jury or non-jury trial. The Magistrate Judge has considerable jury-trial experience as an attorney and Judge.

 

Likewise, where counsel expect a dispositive motion will resolve the case, I encourage counsel, to consent to final disposition by the Magistrate Judge. This is especially so where counsel anticipate, regardless of the outcome, an appeal is inevitable.

 

If before the case management conference the parties have consented to the Magistrate Judge, notify the Courtroom Deputy so that the Magistrate Judge may conduct the case management conference.

 

5. Discovery and Discovery Disputes

 

Notwithstanding the provisions of the Local Civil Rules, I do not impose limits at the outset on the kind and extent of discovery so long as the scope and extent are reasonable and counsel are proceeding in good faith.

 

Pursuant to Local Civ. R. 37.1, counsel may not file any motion relating to discovery, including motions to quash, for a protective order, or to compel, until counsel have: 1) sought in good faith to resolve the matter and 2) contacted chambers promptly to seek informal resolution of the dispute. Notice to the court of a dispute should include a brief statement of the nature of the dispute.

 

I handle all requests for informal resolution of discovery disputes as promptly as possible – often immediately after counsel notify chambers of the dispute and except in highly unusual circumstances, always within twenty-four hours.

 

In the unusual circumstance where the matter requires further consideration (e.g., privilege issues), I will set a briefing schedule.

  • I suggest that counsel refrain from preparing a privilege or similar log, at least until after an informal discovery conference and request from me,. I have very rarely found a privilege log useful. My experience has been that it is is easier and quicker to submit the putative privileged material for in camera review.

 

 

The foregoing notwithstanding, I have no desire to resolve every little squabble. I expect counsel to work together cooperatively and reasonably to resolve problems and expedite discovery. When problems of any sort arise - including problems due to unresponsiveness on the part of opposing counsel - contact my chambers promptly for assistance.

 

6. Conduct of Discovery Generally and at Depositions in Particular

 

Behavior that would not occur in open court before a judge and jury may not take place during discovery.

 

Counsel must conduct depositions with the same decorum as if they were occurring in my presence. Local Civ. R. 30.1. Failure to comply with this requirement will lead to sanctions. See Carr, Depositions and the Court, 32 Tort & Ins. L.J.635 (1997).

 

Counsel must state all objections during a depositions as briefly as possible to communicate the nature of the problem ("form" "leading" "irrelevant" "immaterial" "no foundation," "hearsay," etc.) or by citation to the appropriate evidentiary rule or doctrine.

 

Under no circumstance may counsel engage in speaking objections, untoward argument, conduct demeaning of other counsel or witnesses, objections or statements intended to or having the effect of badgering, harassing, disrupting, or distracting other counsel or witnesses. Profanity is categorically prohibited.

 

Counsel may not terminate a deposition because a dispute has arisen. Instead, counsel is to contact chambers for resolution. If neither I nor another judicial officer is available to resolve the dispute forthwith, counsel are to continue the deposition, leaving the disputed issue or question for later resolution.

 

7. Discovery re. Experts; Daubert Hearings

 

Unless counsel otherwise agree, any party intending to call an expert witness on an issue as to which that party has the burden of proof must provide the expert's report to opposing counsel not later than two weeks before the expert's deposition. If the opposing party intends to present an expert on that issue, that party must provide its expert's report promptly following the first expert's deposition. In any event, the party must provide that report not later than two weeks before producing that expert for deposition.

 

I consider treating physicians to be fact witnesses, rather than expert witnesses, for purposes of compensation under 28 U.S.C. §1821. See Fischer v. Ford Motor Company, 178 F.R.D. 195, 197 (N.D. Ohio 1998) (fact witnesses, including treating physicians, entitled to maximum daily compensation of $40). This does not invariably mean that a da party may not compensate a treating physician for the fair value of his or her services (i.e., the amount the physician would receive for treating a patient). Treating physicians may not, however, receive unreasonably excessive compensation; if a treating physician is demanding unreasonable compensation for a deposition or other necessary cooperation with discovery (such as excessive copying costs), contact chambers for assistance in imposing a limit on the fee or costs which the physician shall receive.

 

Plaintiff's counsel must produce medical records not later than two weeks before the deposition of a treating physician. If counsel encounter excessive delays on the part of providers in responding to requests for medical records, contact chambers for assistance in expediting production.

 

Counsel must complete all discovery pertaining to experts in ample time to assure compliance with the timetable for motions and trial.

 

If a Daubert hearing is necessary, please inform chambers as soon as the need becomes apparent. This will allow me to conduct the hearing before summary-judgment briefing or trial.

 

8. Motions and Motion Practice

 

When seeking a temporary restraining order, plaintiff's counsel must make all reasonable efforts to learn the identity of counsel for the defendant, to give at least informal notice to and to provide defense counsel with the complaint, motion, and memorandum of law, if any. Except in cases of true emergency, I will consider an application for a temporary restraining order only after the other side has had a chance to obtain and consult with counsel.

 

Although I welcome briefs that comply with the page limitations set forth in the Local Civil Rules, it is not necessary to obtain prior leave before filing a brief that exceeds those limitations.

 

Unless the brief is quite short, it should include a list of the headings and subheadings and a table of cases and other authorities.

 

I will usually scheduled motions for summary judgment to become decisonal not later than three months before the trial date. The response time usually will be three to four weeks for the opposition and ten days to two weeks for the reply.

 

The decisional date (i.e., the filing date of the final brief) for motions will usually be either the first or fifteenth of the month.

 

I strongly disfavor a party using reply briefs to raise issues or cite cases that counsel should properly have included in the initial brief. If that occurs, I will either disregard the new material or, if time permits, grant leave sua sponte to opposing counsel to file a surreply as to the new issues.

 

If counsel does not intend to file a reply, please notify chambers promptly. Doing so will enable me to tend to the motion sooner than if I wait for a reply that won’t be filed.

 

Counsel need not provide courtesy copies of briefs.

 

If counsel anticipate needing a hearing (e.g., where personal jurisdiction, Daubert, or other preliminary matter is at issue), notify chambers of that need as soon as possible, preferably at the case management conference.

 

Ordinarily, I do not hear oral argument on routine motions. If counsel desires oral argument, please indicate that preference on the cover page of the motion or brief.

 

I try to decide motions within six to eight weeks after they are decisional. If I have not ruled on a motion after it has been decisional for more than ten weeks, I encourage counsel to let chambers know of that situation. If I anticipate significant additional delay in deciding the motion, I will attempt to advise counsel of the likely length of the delay.

 

If you desire an expedited ruling, notify the Courtroom Deputy of that desire as promptly as possible, and, in any event, on filing of the last brief.

 

If the parties are engaged in settlement negotiations as a motion is pending, notify chambers. If settlement does not occur, inform chamber that a ruling is necessary.

 

9. Motions to Reconsider

 

I strongly disfavor motions to reconsider.

 

For several years, I routinely imposed sanctions under Fed. R. Civ. P. 11 to compensate the opposing party or parties for the amounts expended in responding to a motion for reconsideration that I found lacking in plausible merit.

 

At the urging of a now retired attorney who often appeared before me, I will no longer automatically impose sanctions for filing unsuccessful motions to reconsider.

 

However: file a motion to reconsider only if: 1) I entirely overlooked an issue that clearly was in the original briefing and is material to disposition of the motion; 2) I disregarded clearly controlling authority; or 3) there has been an intervening controlling decision that mandates a different outcome.

 

10. Certification to the Ohio Supreme Court

 

Ohio Supreme Court Rule of Practice XVIII expresses the Ohio Supreme Court's willingness to consider unsettled questions of state law that on certification from a federal court. I encourage counsel in diversity cases and cases involving claims under the Ohio Constitution or statutes to consider requesting certification of such questions. If possible, make the request at the case management conference, if not sooner.

 

11. Status conferences and reports

 

I do not hold the mid-point status conference prescribed in our local rule. Rather than waiting til then to set the trial date, I set the trial date at the case management conference.

 

Not infrequently, I will direct counsel to file periodic status reports, particularly where they have indicated settlement discussions are underway, an issue is on appeal, there is a bankruptcy or other stay, or other reason exists for keeping me aware of the status of the case.

 

If any attorney wants a status or other conference for any purpose, contact chambers promptly, indicating why the conference is desired. The conference will take place as soon as convenient for all counsel.

 

12. Settlement conferences/Final Pretrial

 

As a general rule, I refer settlement and mediation conferences to the Magistrate Judge.

 

Often, I include a date for an initial settlement conference in the case management order. Usually, I do it with the concurrence of counsel. Typically the conference will, occur shortly after an opportunity for some basic fact-finding discovery.

 

I set a final settlement and pretrial conference in almost every case about four weeks before the trial date. If the case is not resolved at that conference, matters covered during a final pretrial will be discussed and, if necessary, resolved then.

 

Lead trial counsel must attend all settlement conferences in person, as must the parties or their representatives with full authority to settle the case.

 

One week before the settlement conference, counsel must send an ex parte narrative settlement statement by email or fax. The statement should discuss the strengths and weaknesses of the case and the perceived strengths and weaknesses of the opponent's case. The statement must state the amount acceptable to settle, with a brief explanation in support of that figure. As a general rule, the ex parte narrative settlement statement should not exceed a few pages. Exhibits, photos, etc., should rarely, if ever, be attached. The purpose of the ex parte narrative is simply to give enough information about the case and insight into the parties' positions to enable useful judicial participation during the settlement conference.

 

Where the parties reach a settlement in principle but the final terms and conditions remain subject to further specification, I encourage the parties to agree to submit any problems regarding remaining terms and conditions to me for binding determination. This reduces the likelihood later of disputes about the terms and conditions of settlement.

 

If the case settles, I will order the filing of a dismissal entry or status report within a month after the settlement conference.

 

13. Mediation, ADR, Etc.

 

While I encourage the parties to use the various modes of alternative dispute resolution described in the local rules, those alternatives should not cause delay in maintaining the trial date . Counsel wanting to pursue ADR should, accordingly, make that desire known promptly.

 

In lieu of formal ADR, counsel may want to ask me to refer the case for settlement/mediation to another District Judge or the Magistrate Judge.

 

14. Trial.

 

I will usually ask counsel to consent to voir dire before the Magistrate Judge. It is not necessary, Unless counsel mutually want one, it is not necessary to prepare a statement for the Magistrate Judge to read to the jury before voir dire. It is also not necessary for counsel to prepare a trial brief unless I specifically request it.

 

I give the jury initial instructions before opening statements. I instruct on their duties as jurors and on the elements of the parties' claims and defenses Counsel may refer to the law in opening statements and closing arguments.

 

Before each witness, I ask counsel to tell the jury who the witness is and what we can expect to hear. Thereby counsel can, in a couple of objective sentences, let the jurors know where the anticipated evidence fits within the overall case.

 

Counsel may question witnesses from wherever in the courtroom they prefer. Please stand when addressing a witness or me.

 

At the end of each day's session, I will ask presenting counsel what witnesses he or she expects to call the next day and what exhibits he or she expects to use. If opposing counsel expects to object to anticipated evidence, I strongly prefer that the he or she raise the objection then so that I can rule on it or at least take it under advisement. This will minimize disruption during trial.

 

Voir dire usually occurs on Monday afternoons. I usually hold trial Tuesdays through Fridays from 8:30 a.m. until 4:30 p.m.