Civil Cases - Case Management Procedures
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 I otherwise indicate. They are simply an indication 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 not yet an appearance on behalf of the defendant or any of the defendants, and otherwise give counsel the opportunity to inform me generally about the case. If counsel so desires, 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 any other non-scheduled conference should notify counsel for each party and send the request to the Courtroom Deputy at JudgeCarr_Chambers@ohnd.uscourts.gov.
If a formal case management conference is to occur, the 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 the likely length of the trial.
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 is appropriate and 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 initial status conference or a formal 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) if sufficiently informed about the case by then, 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 at half-hour intervals on Mondays, usually starting late morning and continuing into the afternoon. If counsel believes we will need more time to address all likely issues, notify the Courtroom Deputy promptly.
Unless the notice of the conference states otherwise, out-of-town counsel and the parties need not attend the 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 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 fact. If there is a disagreement, contact chambers.
Counsel wishing to raise specific matters that do not usually arise at an initial pretrial conference should notify chambers and opposing counsel before the 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 initial status or case management conference.
At the initial status conference, if agreeable to all counsel, or at a formal case management conference, I will schedule all significant events in the case through dispositive or other motion practice.
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). It has been my experience that summary judgment briefs blending both Daubert issues and merits issues tend not to be as useful to counsel or me as dealing with Daubert issues separately and then having the summary judgment briefs follow my decision on the Daubert issues.
I typically ask about the status of settlement discussions at every pretrial conference.
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 such conference.
I typically set two discovery deadlines: one for completion of discovery, including expert discovery re: 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 initial or other pretrial conference; I usually do not require a written motion, etc., and grant the motion when made, subject to payment of the requisite fee
Counsel admitted pro hac vice must review the Local Rules, especially Local Civ. Rs. 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, creation of PDFs, and downloading from CM/ECF).
Counsel, if desired, 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.
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 to 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 expects 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 anticipates, regardless of the outcome, an appeal is highly likely or even inevitable.
If before the initial status or a formal case management conference the parties have consented to the Magistrate Judge, notify the Courtroom Deputy so that the Magistrate Judge may conduct the 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 proportional and 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, or otherwise, until counsel have: 1) sought in good faith cooperatively 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 with and a request from me. I have very rarely found a privilege log useful. My experience has been that it is easier and quicker (and, for counsel and client, less time-consuming and less expensive) 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.
I consider prompt, on-the-record resolution of discovery disputes to be the most important of my case management related activities.
6. Conduct During Discovery 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 deposition 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 have 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 must 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
If counsel desire, I will include the timing of and timetable for designation of experts, disclosure of reports, and depositions.
However, unless counsel otherwise request, a 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 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 may allow me to conduct the hearing before summaryjudgment 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.
I greatly prefer briefs that comply with the page limitations in the Local Civil Rules. However,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. Those pages may be numbered differently (i.e., (i), (ii), (iii), etc.) than the numbering of the text of the brief.
Summary judgment motions usually are due one month after completion of summary judgment-related discovery; the opposition (and counter-motion) will be due one month thereafter; the reply (and opposition to the counter-motion, if any) will be due two weeks thereafter.
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 will notbe filed.
Counsel need not provide me with 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 initial status, case management, or other pretrial conference.
Ordinarily, I do not hear oral argument on routine motions. If counsel desire oral argument, please indicate that preference on the cover page of the motion or brief or make that desire known to me.
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 while a motion is pending, notify chambers. If settlement does not occur, inform chambers 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 that 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 Ohio statutes to consider requesting certification of such questions. If possible, make the request at the initial status or case management conference, if not sooner.
11. Status conferences and reports
Unless counsel ask me to do so, I do not hold the mid-point status conference prescribed in our local rule.
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
I often 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.
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 any settlement conference that I will be conducting, counsel must send an ex parte narrative settlement statement by ordinary mail or email. 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 of later 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.
If counsel desire, I will retain jurisdiction following settlement to enforce the settlement agreement.
Because I reside primarily in Williamstown, Massachusetts, though I remain on full draw, I no longer set trial dates at the initial status or case management conference, unless the parties agree that no summary judgment will be forthcoming. Otherwise, the trial date will be set shortly after denial, if such occurs, of summary judgment.
As I anticipate returning to Toledo on a monthly basis, I expect to continue to preside at trial of those cases that appear triable within up to four days. Where the trial will be longer, I will encourage counsel to consent to the jurisdiction of the Magistrate Judge and his presiding at trial. Where the parties prefer to have a District Judge preside at a longer trial, I will contract my colleagues to determine their availability for the requisite period within the parties’ preferred time frame.
I usually ask the parties to consent to the Magistrate Judge presiding at voir dire.
It is my practice to seat a twelve-person jury in civil cases.
Unless I otherwise request, it is not necessary for counsel to prepare a preliminary statement about the case to be read for the jury. If all counsel desire and prepare such statement on agreement, I will have it read to the jury prior to voir dire.
I greatly prefer to give the jury an initial charge before opening statements. Per the trial scheduling order, the parties are to submit proposed instructions on the elements of claims and defenses. (I have my own standard instructions on various other issues). I likewise give the final charge before closing argument.
Counsel may refer to the instructions during their 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.
Where judicial and other resources may be conserved and only following consultation with counsel, I may bifurcate the trial between liability and damages.
As a general rule, counsel shall not refer to seeking punitive damages until preparation of the final jury instructions.
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