_ n t _ t 

1991 REPORT OF THE ADVISORY GROUP 


OF THE UNITED STATES DISTRICT COURT 


FOR THE NORTHERN DISTRICT OF CALIFORNIA 


APPENDIX A 

TO THE 


CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN 


OF THE NORTHERN DISTRICT OF CALIFORNIA 

TABLE OF CONTENTS 


Page 

I. INTRODUCTION............. . 	 1 


II. SUMMARY OF RECOMMENDATIONS. . . . . . . . . . . . 	 4 


A. 	 Alternative Dispute Resolut~on. . . . . . . 5 


B. 	 Civil Pro Per Litigation. . . . . . . . 5 


C. 	 Motion Practice . . . . . . . . . . . . . . . . .. 6 


D. 	 Pretrial Case Management/Discovery. . . . . . . .. 6 


E. 	 Short Cause Pilot Program . . . . . . . . . . . 7 


F. 	 Recommendations for Further Study. . . . . . . .. 8 


III. 	STATISTICAL INFORMATION ABOUT 


THE NORTHERN DISTRICT.. ...... ... . 9 


A. 	 Introduction. . . . . .. ... . . . . 9 


B. 	 Civil Caseloads . . . . .. ......... . 10 


C. 	 Criminal Caseloads ............ . 11 


D. 	 Summary of CY 1990 Civil and Criminal Caseloads 13 


E. 	 Trial Statistics. . . . . . . .. . .... 13 


F. 	 Vacant Judgeships . • . . . . .. •.... 15 


G. 	 Cases Pending . . . . . . . . .. ...... . 16 


H. 	 Trends Which May Adversely Impact the Northern 


District's Docket. . . . . . . . . ...•.. 16 


IV. 	 RECOMMENDATIONS FOR ALTERNATIVE DISPUTE RESOLUTION. 19 


A. 	 Introduction.......... ...... 19 


B. 	 Recommendations................ 21 


1. 	 Recommendation: Notice of ADR Availability.. 21 


2. 	 Recommendation: Retention of ADR Staff. . • . 22 


3. 	 Recommendation: ENE Evaluation Study. • . • . 25 


4. 	 Recommendation: Assess Pilot Mediation 


Program. . . . . 27 


5. 	 Recommendation: FJC Settlement Conference 


Credit . . . . . 27 


V. RECOMMENDATIONS FOR CIVIL PRO PER LITIGATION. 	 28 


A. 	 Introduction.............. .... 28 


B. 	 Recommendations.................. 28 


1. 	 Recommendation: Retention of Attorney/Clerk. 28 


2. 	 Recommendation: Modify General Order No. 25. 29 


VI. 	 RECOMMENDATIONS FOR MOTION PRACTICE. . . . . . . . . 30 


A. 	 Introduction...·........... 30 


B. 	 Recommendations............ 30 


1. 	 Recommendation: Tentative Rulings 30 


2. 	 Recommendation: Notification of Final 


Decision . . . . . . . . . . . . . 31 


3. 	 Recommendation: Limit Permissible Pleadings. 32 


4. 	 Recommendation: Orders Shortening Time. . 32 


5. 	 Recommendation: Uniform Page Limit. . 32 


6. 	 Recommendation: Rulings on Motions. • 32 


7. 	 Recommendation: Expedited Service. . 33 


10930711 	 -i­
VII. 	RECOMMENDATIONS FOR CASE MANAGEMENT 


AND DISCOVERY PILOT PROGRAM. . . . . . . . . • . . . . . 33 


A. 	 Introduction.................... 33 


B. 	 Recommendations................ 35 


1. 	 Recommendation: The proposed Pilot Program. . 35 


2. 	 Recommendation: Case Management Time Line. . 39 


3. 	 Recommendation: Discovery Limitations . . . . 39 


4. 	 Recommendation: Client Participation. . . . • 47 


5. 	 Recommendation: Pilot Program Monitoring and 


Evaluation . . . . . . . . . . . • . . . . • . 47 


VIII. RECOMMENDATIONS FOR FURTHER STUDY. • . • . . . . . . . 48 


A. What Means Should Be Used To Accomplish Firm Trial 

Dates? . . . . . . . . . . . . . . . . . . . . . . 4 8 


B. 	 Should the Losing Party Be Required To Pay for the 


Cost of Discovery Motions? . . . . . . . . • . . • 50 


C. 	 What Is the Impact of prisoner/Pro Per Litigation 


on the Northern District? • . . . . •. .... 50 


1. 	 Introduction................. 50 


2. 	 Nonprisoner Pro Per Litigation. . . . . . . . 51 


3. 	 Impact of Prisoner Litigation. • . • . . . • . 53 


4. 	 Current Issues Relating to Prisoner Caseloads 


in the Northern District • • . . • . • . . • . 54 


5. 	 Summary of Prisoner Caseload Projects. • . 60 


D. 	 What is the Impact of New Legislation on the 


Northern District? • • . . . . • . . . . • • • 62 


1. 	 Introduction............... 62 


2. 	 Plan of Action. . . . • . . • • . . . • • • • 62 


3. 	 Preliminary List of Issues--Special Problems 


Relating to United States Litigation . . . • . 65 


4. 	 Preliminary List of Issues--Special Problems 


Relating to State and Local Government 


Litigation • . • • . •• .•• 67 


IX. 	 CONCLUSION . • • . . . . 67 


X. 	 APPENDICES 

A. 	 The Advisory Group . A-1 to A-6 · · · · · · · · · · · B. 	 SY 1990 and SY 1991 Judicial Workload 

Profiles, published by the Administrative 

Office of the United States Courts B-1 to B-2 · · · · C. 	 Materials Relating to the evaluation study 

of the Northern District's Early Neutral 

Evaluation program . · · C-1 to C-23 · · · · · · · · · D. 	 Federal Pro Bono Project Guidelines · · · · D-1 
to D-10


E. Case Management Checklist 	 · E-1 to E-9
 · · · · · · F. 	 Case Management Order · · · · · · · F-1 to F-24


· 	 · 

-ii 
1991 REPORT OF THE ADVISORY GROUP 


OF THE UNITED STATES DISTRICT COURT 


FOR THE NORTHERN DISTRICT OF CALIFORNIA 


I. INTRODUCTION. 

This report is submitted pursuant to the provisions of 

the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471-482 (tithe 

Act") to the United States District Court for the Northern District 

of California ("the Northern District") by the Advisory Group 

appointed by Chief Judge Thelton E. Henderson in accordance with 

section 478 of the Act. l 

With the exception of ten district courts identified as 

"Pilot Districts" by the Judicial Conference of the United States 

("the Judicial Conference"), the Act requires that all United 

States district courts, including the Northern District, implement 

a civil justice expense and delay reduction plan no later than 

December 1993. The Act also provides that any court which develops 

and implements such a plan no later than December 31, 1991 shall 

be designated by the Judicial Conference as an "Early Implementation District Court." The Advisory Group believes that there are 

significant advantages to attaining early implementation status 

under the Act. Those advantages include the opportunity to 

implement now those measures as to which a consensus exists with 

1 Consistent with section 478(b) of the Act, the Advisory Group 

consists of attorneys and other persons who are representative of 

the major categories of litigants in the Northern District. A list 

of the members of the Advisory Group, a description of its 

committee structure and a summary of its research methods appears 

as Appendix A to this Report. 

-1­ 10930771 
respect to their need, and to adopt on an experimental basis those 

measures as to which our research demonstrates are likely to reduce 

unnecessary expense and delay in litigating civil cases to a just 

conclusion. Accordingly, the Advisory Group proposes that the 

Northern District approve the recommendations contained in this 

Report no later than December 31, 1991 for implementation in 1992. 

By this Report, we do not intend to convey the impression that 

our work is done. Instead, we will continue to identify the causes 

of unnecessary cost and delay in the Northern District, and to 

formulate recommendations for their reduction and eventual elimination. In addition, we will monitor implementation of our 

recommendations to determine if they prove effective in reducing 

unnecessary cost and delay. Finally, we propose to study the many 

issues which our research has identified as being in need of 

further investigation and analysis before implementation can or 

should be made on even an experimental basis. Those areas are set 

forth at pages 48 through 67 of this Report. We will provide the 

Northern District with a final report of our findings and recommendations in mid-1993. 

Our present recommendations fall generally within one of 

two categories: (A) recommendations for court-wide implementati,:m 

in 1992; and (B) recommendations for pilot implementation in 1992. 

The burden of implementing these recommendations is intended toee 

shared among the attorneys who practice in the Northern District, 

the litigating parties who utilize its services, and the judiciaeC¥ 

10930771 -2­
and staff of the Northern District. 2 Increased efficiency and 

productivity in federal courts is necessary not only to preserve 

the confidence and trust of clients and the public alike, but also 

to enable us to return to a system of federal district courts in 

which judges have time to listen patiently, to weigh and reflect 

carefully, to appreciate and value their unique life in the law, 

and to be free from back-breaking calendars and the relentless 

statistical necessity to clear old cases at any cost so that new 

cases can be heard. To this end, our recommendations ask that 

litigating attorneys streamline their discovery and motion practice 

and resolve their disputes earlier in the process, that litigating 

parties become more active in the proceedings, and that the 

Northern District exercise greater control over the litigation 

process. Reforms in mature institutions are difficult to achieve. 

Inertia favors the old and the familiar. No institution renews 

2 We also believe that Congress must recognize, and take 

appropriate remedial action to address, its own responsibility for 

the expense and delay now associated with litigating civil actions 

in our federal courts. The gradual imposition on the federal 

courts of ever increasing numbers of new federal rights and new 

federal crimes threatens the potential success of the Act, and may 

result only in compressing the civil docket so that additional 

criminal cases can be heard. In addition, the failure to fill 

judicial vacancies promptly has had a substantial impact on the 

ability of the Northern District to devote its scarce resources to 

the resolution of civil actions. One of our responsibilities under 

the Act is to determine the extent to which legislation creates 

judicial impacts, burdening the courts with tasks which they lack 

the personnel to perform. The American Bar Association has 

recently endorsed the concept of judicial impact statements for new 

legislation. Our preliminary research suggests that we too endorse 

this concept. We intend to further analyze this issue during the 

course of our investigation in 1992. Similarly, we will take a 

hard look at the criminal docket to assess its impact on the just, 

speedy and inexpensive determination of civil actions. In our 

final report, we anticipate that Congress will be asked to share 

in the burden of implementing measures aesigned to reduce expense 

and delay in civil litigation. 

10930711 -3­
itself without a revived commitment to the excellence and vigor 

that fired its early success. To introduce economies in federal 

civil practice may require all of us not only to think anew, but 

to jettison some of our old and familiar ways. 

At the same time, we understand that the Act permits and 

even invites us to invoke reforms which are inconsistent with the 

current Federal Rules of Civil Procedure. By virtue of the 

proliferation of local rules, there are already many iterations on 

federal rules among the district courts. In this Report, we also 

make recommendations that depart in one way or another from the 

current federal rules. We intend to monitor, among other things, 

how these special departures affect the ability of attorneys from 

other districts to practice before the Northern District without 

undue burden. The existence of complex local rules has been a 

mixed blessing, and should not be encouraged without further 

careful study. With this caveat, a summary of our recommendations 

follows. 

II. SUMMARY OF RECOMMENDATIONS. 

The measures which the Advisory Group recommends be 

approved by the Northern District for implementation in 1992 fall 

into four subject matter areas: (1) alternative dispute resolution; (2) civil pro per litigation; (3) motion practice; and 

(4) pretrial case management/discovery. The Advisory Group 

believes that implementation of each recommendation will contribute 

to reducing unnecessary cost and delay in civil litigation in the 

Northern District. 

10930771 -4­
A. Alternative Dispute Resolution. 

The Advisory Group's analysis of the Northern District's 

current alternative dispute resolution program demonstrates that 

there is substantial anecdotal approval of the alternatives 

available, but that there is insufficient data upon which to base 

definitive conclusions as to its contribution to cost and delay 

reduction. Furthermore, the Advisory Group has found that support 

services are thoroughly insufficient to achieve the desired 

results in the existing programs. The following recommendations 

address these and some additional problems. Each of these 

recommendations is designed to make a good program better. 

To this end, the Advisory Group believes that procedures 

should be implemented in 1992 to: (1) ensure that notice of the 

Northern District's alternative dispute resolution program is 

provided to all litigants; (2) provide adequate staff to supervise 

and improve the administration of the program; (3) evaluate the 

use of the Northern District's early neutral evaluation program: 

(4) assess the need for a mediation program; and (5) encourage the 

use of judge-supervised mandatory settlement conferences. 

B. Civil Pro Per Litigation. 

The number of pro per and prisoner matters, particularly 

habeas and prison conditions cases, has increased dramatically and 

is likely to continue to do so in light of both state capital 

punishment cases and Pelican Bay matters. For example, prisoner 

cases in the Northern District increased 43.8% between 1986 and 

1990. Quantitatively, these cases represent the largest number of 

10930771 -5­
cases on the Northern District I s current docket. In reporting

year 1991, 23% of all cases filed were prisoner petitions. 

Given the demands of the existing caseload, the staff 

has had little opportunity to analyze whether the process by which 

these cases are handled could be better administered. 

Accordingly, the Advisory Group recommends the retention of 

additional staff both to relieve the present burden and to assist 

in collecting the data necessary to determine how that process 

might be improved. 

The Advisory Group also recommends that the procedures 

now set forth in the Federal Pro Bono Project Guidelines be 

incorporated into the Northern District General Order No. 25. 

C. Motion Practice. 

The Advisory Group, after considerable dialogue, has 

concluded that there is unnecessary cost and delay in motion 

practice. For reasons discussed in this Report, we believe that 

implementation of the following measures will contribute to 

reducing this cost and delay: (1) use of tentative rulings; 

(2) elimination of argument if final decisions have already been 

madej (3) consolidation and limitation of motion papers; 

(4) issuance of decisions within prescribed time limits; and 

(5) expeditious service of motion papers when appropriate. 

D. Pretrial Case Management/Discovery. 

A range of case management approaches, including more 

efficient discovery, are currently used by the judiciary within 

the Northern District. The Advisory Group believes that increased 

use of these procedures will reduce unnecessary cost and delay. 

10930771 -6­
To this end, we suggest the adoption of a Case Management Pilot 

Program in which the pilot judges, of whom there should be at 

least five, follow certain procedures, including: (1) a case 

management checklist for use by counsel, ( 2) a mandatory case 

management conference, and ( 3) a case management order, which 

includes a firm time line. According to the case management 

needs, the order might include: (1) discovery limitations; 

( 2) continuances, on approval only; ( 3) the use of alternative 

dispute resolution procedures; (4) regularly scheduled status 

conferences; (5) single issue trials to resolve disputed issues or 

to facilitate settlements; and (6) narratives for experts in nonjury trials, as well as other trial time-saving devices. 

E. Short Cause Pilot Program. 

The Advisory Group recommends that a pilot program be 

adopted whereby each pilot judge would set aside a specified 

period of time on his or her calendar (e.g. one week, once or 

twice per year) during which only short cause matters, defined as 

cases or issues expected to be tried in one or two days or less, 

would be tried. Discovery in these cases would either be denied 

entirely, or extremely limited. 

This recommendation is based upon information collected 

to date which indicates that one of the most important factors 

leading to the just and efficient disposition of civil matters is 

a firm trial date. If counsel in these short cause matters were 

assured of a firm trial date, then these matters would be more 

efficiently resolved either by way of settlement or trial. 

10930771 -7­
F. Recommendations for Further Study. 

In this Report, we also make recommendations for further 

study by the Advisory Group. The issues we intend to explore in 

greater detail include: ( 1) the impact of prisoner/pro per 

litigation on the Northern District; and (2) the impact of new 

legislation on the Northern District. 

We also intend to study the various means which might be 

utilized to achieve firm trial dates in civil litigation. Such 

measures include: (1) wider dissemination of information with 

respect to the availability and competence of magistrate judges to 

hear cases; (2) the use of "back-up judges" to hear cases in the 

event that the assigned judge is not available on the scheduled 

trial date; and (3) a requirement that a motion for continuance of 

a trial date be signed by the party on whose behalf the motion is 

made. While we are not yet in a position to recommend the 

implementation of any specific measure, the Advisory Group 

nevertheless urges the Northern District to establish as one of 

its highest priorities the setting of reasonable, but firm, trial 

dates in every civil action. 

10930771 -8­
III. STATISTICAL INFORMATION ABOUT 


THE NORTHERN DISTRICT. 


A. Introduction. 

The jurisdiction of the Northern District encompasses an 

area from the Oregon border in the north to Monterey County in the 

south. Major cities within the Northern District include Oakland, 

San Francisco and San Jose. There are fourteen active judgeships 

currently authorized. Three of these positions remain vacant, 

although appointments have been made to fill them. The Northern 

District also has nine senior judges and nine magistrate judges. 

presently, the active judges in the Northern District each carry 

average caseloads of over 400 civil cases and over 60 criminal 

cases. We anticipate that appointment of the new judges will be 

of substantial assistance in reducing unnecessary cost and delay 

in civil litigation by reducing average caseloads to a less backbreaking level. J 

The following statistical information is based upon 1990 

and 1991 statistical year ("SY") [June 30-June 30] activity as 

reported by the Administrative Office of the United States Courts 

("the AO"), unless otherwise indicated. The AO, however, does not 

collect statistical information about the substantial number of 

petty offenses, traffic cases and like matters handled by the 

The welcome arrival of these judges can be expected, however, 

to strain the existing resources of the Northern District. For 

example, due to severe space limitations, one of the new judges 

will not have a courtroom and will be required to shift locations, 

possibly on a daily basis. The difficulties this situation will 

pose to attorneys, clients, jurors, witnesses and the public are 

obvious. 

10930171 -9­

3 
magistrate judges. This Report, accordingly, does not include 

such information. 

B. Civil Caseloads. 

In SY 1991, new civil case filings totalled 4,643, a 

decrease of 3.3% from the 4,801 new civil cases filed in SY 1990. 

There were 4,360 civil cases terminated in SY 1991, a decrease of 

9% from the 4,837 civil cases terminated in SY 1990. Pending 

civil cases in SY 1991 stood at 4,883, increasing 6.2% over the 

4,600 pending civil cases in SY 1990. Nationally, civil filings 

declined 5%, continuing a trend commenced in 1986. 

Six categories of cases accounted for approximately 81% 

of the private (United States not a party) civil suits commenced 

in SY 1991: 

1. Prisoner Petitions 963 

2. Contracts 747 

3. Labor 478 

4. Civil Rights 444 

5. patent/Copyright 210 

6. Personal Injury 153 

Of the 1,007 additional civil suits commenced in SY 1991 

in which the United States was a party, seven categories comprised 

approximately 87% of the caseload: 

1. Contracts 345 

2. Torts 122 

3. Prisoner Petitions 106 

4. Tax 97 

-10­ 10930771 
5. Civil Rights 78 

6. Social Security 76 

7. Forfeiture/Penalty 56 

A summary of 1985 through 1990 civil caseloads on a 

calendar year ("Cyll) basis is depicted below. 

Northern California 

Civil Caseload Summary 1985 • 1990 

:::::: t ~ 

~ • -

• 

! •.'0', ~ 

.... ....., 0

.. 'oM'1• • "­

J • :-..

• I • • 

II 4••0. Z 

2.00' I 

• : I 

IttS I'" .," I,n .," 1"0 

\Ur EDdiDS Deeember 51 

flila.. 

",ai_I... 

..ad la, 

C. Criminal Caseloads. 

In SY 1991, criminal case filings totalled 681, a 

decrease of 6.6% from the 729 criminal cases filed in Sy 1990. 

There were 605 criminal cases terminated in SY 1991, an increase 

of 6% from the number of criminal cases terminated in 1990. 873 

criminal cases were still pending in SY 1991, an increase of 12.1% 

from the 1990 f~gure. 

10930771 -11­
The number of criminal defendants prosecuted in proceedings originating in the Northern District ("original proceedings") 

in SY 1991 was 909. 619 were felony proceedings, and 287 were 

misdemeanor proceedings, of which 100 were misdemeanor traffic 

violations. ("Original proceedings" excludes transfers, 

reopenings, etc.) Thus, both criminal cases, and the number of 

defendants prosecuted, declined in SY 1991 from SY 1990. 

A summary of CY 1985 through 1990 criminal caseloads is 

reproduced below: 

Northern California 


Criminal Caseload Summary 1985 • 1990 


1.200 I 

1.'00 I Ai­ ~ ./ '" .---0 CI '." 

.. -

0 "'r "­ c .. 610+ 

J 

B I :II ..0+ Z 

'"t

• I 

If,. 

lUr Eodla, December 31 

ItI' I'" I'" I,.. "., 

- Filial' 

-e. 'IIII••IUlI•••

.. .....,.. 


-12­ 10930771 
D. 	 Summary of CY 1990 Civil and Criminal 

Caseloads. 

CY 1990 civil and criminal caseloads are depicted in the 

following chart. 

Ch'U and Criminal Caseload Summary 

.Aulhori:.ed Judg:.ships . . . .. 12 Senior Judges . .. .. .. . .. 7 

VQC.Q7l/ MOI'lJhs· ..•..... 19.2 

Swnmary 

Cnil CriminaJ Total 

1989 1990 If, Cba.ngr 1989 1.990 % CbaDgt 1989 1990 01angr 

Tocal~ 5.r~ 4.501 ·131 fIXJ 735 65 5;LB 5,236 -10.8 

Per Judg:.ship: weiifiJ.ed 383 442 15.4 48 :D 4.2 431 492 14.2 

~ifiJ.ed 4~ 375 58 61 489 436 

Tocal Tcn:n.in.alioos 5,334 4,415 ·17.2 8J2 626 ·219 6,l36 5,D41 ·17.8 

Per Judgeship: un~et1 445 368 01 52 S11 43) 

Pending CaseJoad 4.iIlS 4,792 1.8 fIXJ 8)5 16.7 5,.JJ6 S.$f1 3.7 

l+r J~: unweighJed m. Y:1 58 01 450 466 

Case Tc::nnination I.ndc:x 

(MC71Iiu) 10.6 13.0 23.0 103 15.4 495 10.6 133 263 

Median Time, rUing to 

Disposition (MaJ//u) 6 8 333 

• lor period July L 1989 tJlrouCh June .1>. 19\10. 

E. 	 Trial Statistics. 

In SY 1990, 202 trials were completed. Of these, 96 

were trials of civil actions (53 jury/43 non-jury), and 106 were 

trials of criminal actions (69 jury/37 non jury). The Northern 

District was ranked 90th out of 94 districts nationwide with 

respect to the number of trials completed. By the same standard, 

the Northern District ranked 11th within the Ninth Circuit. 

In SY 1990, eight of the trials completed took 20 days 

or longer; the longest consumed 58 jury trial days (City of San 

-13­ 10930771 
Jose v. Paine Webber). The trials of 48 actions took one day; 78 

actions took between four and nine days to try. 

In SY 1991, the number of trials of all types of cases 

(excluding trials by magistrate judges) dipped to 178. There were 

99 trials of civil cases (57 jury/42 non-jury), and 79 trials of 

criminal cases (52 jury/27 non-jury). 

A comparison of the number of trials completed in SY 

1990 and SY 1991 is depicted in the following table: 

SY 1990 SY 1991 

Days Civil Criminal Total Civil Criminal Total 

1 20 28 48 18 16 34 

2 12 14 26 16 7 23 

3 10 11 21 17 6 23 

4-9 39 39 78 32 34 66 

10-19 9 12 21 12 12 24 

20+ 6 2 8 4 4 84 

TOTAL 96 106 202 99 79 178 

4 In SY 1991, the cases which took 20 or more days to try were 

evenly divided between civil and criminal cases: 

Civil 

Kal W. Lines v. Bank of America (Antitrust), 26 days/juryJ 

Beregin, et al. v. Feinstein (Civil Rights), 25 days/jury; 

E.!. DuPont v. Cetus (Patent), 24 days/jury; 

Eureka Federal S&L v. Kidwell (Breach of Fiduciary Duty), 

20 days/jury. 

Criminal 

u. S. v. Abono, et al. (Marijuana), 28 days/jury; 

u.s. v. Broussard, et al. (Civil Rights), 25 days/jury; 

u.s. v. Laurins (Wire Fraud), 21 days/jury; 

U.S. v. White (Tax Evasion), 20 days/jury. 

-14­ 10930771 
The "Judicial Workload Profile" published by the AOs 

reflects that the Northern District reported a decrease of four 

trials per judgeship--from 17 trials per judge in SY 1990 to 13 

trials per judge in SY 1991. In light of this reduction, the 

Northern District was ranked 93rd nationally and 14th within the 

Circuit with respect to trials per judgeship completed. 6 

F. Vacant Judgeships. 

In SY 1990, 458 cases were assigned to each of the 12 

active judgeships. (It should be noted that the Northern District 

has 100 multi-district litigation cases). Due to vacant judgeships, the Northern Qistrict had 19.2 "vacant judgeship" months. 

We believe that this figure is an understatement, due to a 

drastically reduced caseload of one active judge. 

The continued slow pace of filling vacant judgeships has 

created a distinct hardship on the Northern District. In SY 1990, 

the weighted filings per authorized judgeship in the Northern 

District stood at 500, placing the Northern District 1st in the 

Circuit and 17th (out of 94) nationally. In SY 1991, the weighted 

filings per judgeship, calculated using 14 judgeships, decreased 

to 417 per judge. Vacant judgeship months, however, increased to 

27.2 months. The Northern District now ranks 3rd in the Circuit 

and 23rd nationally with respect to vacant judgeship months. 

5 Copies of the Judicial Workload Profile for SY 1990 and 

SY 1991 are attached as Appendix B to this Report. 

6 Anecdotal evidence suggests that the relatively low number of 

trials completed per active judgeship may be due, in part, to the 

success of the Northern District's alternative dispute resolution 

programs. The Advisory Group intends to study this issue further 

to determine, with more certainty, its cause. 

10930771 -15­
G. Cases Pending. 

In SY 1990, 746 (15.1%) of the 4,945 civil cases pending 

had been pending for three years or more. This reflects an 

increase of 5.4% from the 1989 figure of 486 cases. The number 

dropped to 440 in SY 1991. Thus, the percentage that older cases 

bears to total cases decreased to 9.0%. 

In SY 1991, the median civil disposition time (time from 

filing to disposition) remained at eight months where it has been 

since SY 1988. The national figure is nine months. Time from at 

issue to trial decreased slightly in SY 1991, from 16 months in SY 

1990 to 15 months in SY 1991. 

H. 	 Trends Which May Adversely Impact the Northern 

District's Docket. 

Unlike many other districts, the criminal docket in the 

Northern District does not appear to pose, at present, a 

significant problem with respect to the efficient litigation of 

civil actions. Indeed, in SY 1991, the major decrease in trials 

completed occurred in trials of criminal, not civil, cases. 'rhe 

five longest trials were trials of three civil and two criminal 

cases. 

Prisoner petitions, however, have assumed a 

statistically significant position in the Northern District, 

rising dramatically in 1990 to 890 cases, the largest number filed 

in anyone category. The 1991 workload profile shows a furth.er 

rise in SY 1991 with 1,069 filings. Statistically, prisoner 

petitions comprised almost 20% of civil filings in SY 1990, and 

23% of the 4,643 civil filings in SY 1991. We anticipate that 

10930771 	 -16­
this trend will continue, given the renewed efforts to implement 

the death penalty in California and the fact that a new maximum 

security state prison facility is located in the Northern 

District. Thus, the Advisory Group has formed a committee to 

review and analyze both prisoner condition and death penalty 

habeas corpus cases. A summary of this committee I s present 

findings may be found at pages 49 through 61 of this Report. 

Specific in-court hours devoted to handling prisoner 

petitions are not available from any source. Informal comments by 

the judiciary of the Northern District reflect a consistent view 

that the main workload factor is in-chambers time, not in-court 

time. The Northern District does not generally refer prisoner 

petitions to magistrate judges. The AO reports that no "prisoner 

petitions" in the Northern District fell into that category in SY 

1990 or SY 1991. The same is true for the Southern District. The 

Central District reports that 853 of 1,059 such cases were handled 

by magistrate judges; the Eastern District reports that 613 of 975 

cases were so handled. 

Available statistics do not lend themselves to a 

critical analysis of cost and delay factors. The system 

previously used to collect data was not designed to identify 

causes of either cost or delay. The new "CIVIL" electronic docket 

driven system is technologically capable of gathering the type of 

data which will assist in the analysis, but it must be programmed 

to do so apart from the standard statistical compilations now 

required for submission to the AO. Customized reports to address 

local needs can be generated from a properly designed program. 

10930771 -17­
The Advisory Group hopes to obtain funding under the Act 

to engage a consultant to assist in further analysis of the state 

of the docket, and to design a program to collect appropriate 

data. Such assistance will help us to identify, among other 

things, those litigation activities which account for the greatest 

expenditure of litigation resources, when (and why) the most 

significant delays occur in the pretrial process, why judic ial 

interventions occur when they do, and to what relative effect. 

The Advisory Group also intends to study the criminal 

docket and issues associated with the litigation of criminal cases 

to assess their potential impact on the civil process. Among the 

areas of interest are the increase in the size of the u.S. Attorney's Office, emphasis on civil forfeiture matters, increases in 

civil penalty cases, Congressional "federalization" of heretofore 

"local" offenses handled in state courts, Department of Justice 

enforcement policies, such as the recent "Operation Triggerlock,,7 

and Sentencing Guidelines (both in-court and chambers time, and 

the "satellite" litigation effect) and the additional matters 

discussed in the section of this Report entitled "Legislation 

Impact. " 

Civil litigation brought by the United States will 

receive attention in light of increased Department of Justice 

activity in "Qui Tam" cases and several circuit decisions 

upholding government employees' right to sue under the statute. 

7 "Operation Triggerlock" is a national campaign by the federal 

government to rid the streets of illegal firearms. Firearm 

violations have traditionally been the province of state and local 

prosecutors. 

10930771 -18­
This area of complex three-party litigation could have an impact 

on the docket in future years. 

In speeches and presentations, the Department of Justice 

has announced that it will step up litigation against health 

providers who submit improper claims, noting amendments to the 

false claims statutes that assist enforcement areas. New emphasis 

on court orders for discovery to implement review of insurance 

company processing of Medi-Care claims could also impact the 

docket substantially. 

IV. RECOMMENDATIONS FOR ALTERNATIVE DISPUTE RESOLUTION. 

A. Introduction. 

The Act provides that the Judicial Conference must 

conduct a "demonstration program," pursuant to which the Northern 

District is required to demonstrate, among other things, the 

efficacy and potential of its alternative dispute resolution 

( "ADR") program. 8 To accomplish this directive, the Advisory Group 

appointed a committee of its members to study the Northern District I S current ADR program, to assess its impact on reducing

unnecessary cost and delay in civil litigation, and to make 

8 The Northern District programs have been the subject of 

considerable scholarly, bar and judicial attention, as well as 

self-examination. The District's early neutral evaluation program 

has been the subject of three substantial published studies. See 

Brazil, Kahn, Newman & Gold, Early Neutral Evaluation, A FollowUp Report, 70 Judicature 236 (1987); Levine, Northern District of 

California Adopts Early Neutral Evaluation to Expedite Dispute 

Resolution, 72 Judicature 235 (1989); and Brazil, A Close Look at 

Three Court-Sponsored ADR Programs: Why They Exist, How They 

o erate, What The Deliver and Whether The Threaten 1m ortant 

Values ("A Close Look"), 1990 University of Chicago Lega Forum, 

pp. 331-363. 

10930771 -19­
recommendations concerning its administration, evaluation and 

possible expansion. This section of the Report summarizes the 

present findings and recommendations of the ADR committee. The 

Advisory Group, as a whole, has approved these findings and 

recommendations. 

The Northern District currently provides a considerable 

number of ADR procedures whose primary purpose is to reduce expense 

and delay in civil litigation. In addition to the programs discussed below, the Northern District offers its litigants the use 

of: (l) special masters for case management/discovery and for 

settlement; (2) nonbinding summary jury and bench trials; 

(3) settlement conferences conducted by judges and magistrate 

judges; and (4) private ADR options. 

The Northern District I s arbitration and early neutral

evaluation ("ENE") programs currently touch upwards of one thousand 

civil cases each year. These programs have demonstrated that they 

enjoy very substantial support in the bench and bar. More than 80% 

of attorneys polled in a Federal Judicial Center ("the FJC") study 

endorsed the arbitration program. Almost 90% of attorneys polled 

in a study of the ENE program during an earlier, experimental stage 

urged extension of the program to more cases. Attorneys were al so 

asked to compare a required ENE session to a typical initial stat.us 

conference in the Northern District. Of the attorneys polled by 

the study, 95% responded that ENE contributed more to communication 

across party lines than did a typical initial status 

conference; 88% responded that ENE contributed more to prospects 

for settlement; 83% responded that ENE contributed more to issue 

10930771 -20­
clarification; and 73% responded that ENE contributed more to 

setting the groundwork for cost-effective discovery. Thus, there 

is substantial reason to believe that these programs offer valued 

services to attorneys and litigants that are not being delivered 

in the traditional adjudicatory process. See, e.g., Brazil, ! 

Close Look, supra, pp. 303-397. 

In light of their use and potential to reduce unnecessary 

expense and delay in civil litigation both in the Northern District 

and nationally, this Report contains recommendations for early 

implementation which focus upon assessing and improving our ADR 

programs. 

B. Recommendations. 

1. Recommendation: Notice of ADR Availability. 

We recommend that three relatively modest changes to the 

Local Rules regarding notice of the availability of ADR procedures 

be implemented in 1992. As previously discussed, a broad array of 

alternatives to traditional litigation in federal court already 

exists in the Northern District. Some are provided by or through 

the Northern District itself (e.g., ENE); some are provided privately. A brochure describing these services is available, but is 

not distributed on any regular basis. As a first step, we recommend that procedures be put in place to ensure that all counsel and 

all litigating parties are aware of the various alternatives to 

federal litigation available to them. 

To this end, we recommend that the Local Rules be 

supplemented to require that: (1) a written description of the ADR 

techniques available in the Northern District be delivered to all 

10930771 -21­
persons filing a complaint; (2) a copy of that written description 

be served upon all opposing parties with service of the summons and 

complaint; and (3) a written acknowledgement, signed by each lit_igating party, be filed with the court establishing that the 

litigant has read and understood the ADR alternatives available. 

2. Recommendation: Retention of ADR Staff. 

Prior to adoption of the Act, supervision of the 

Northern District's ADR programs was, in large part, dependent 

solely upon the volunteer work of one of the Northern District's 

magistrate judges, Wayne D. Brazil. Because we could not, in good 

conscience, expect Magistrate Judge Brazil to continue his 

herculean efforts, particularly in light of the Act's additional 

mandate to demonstrate our ADR program, the Advisory Group 

requested funding provided under the Act to retain a full-time 

staff professional, together with associated support staff and 

equipment, to supervise the ADR program. Stephanie E. Smith, an 

attorney who is experienced in civil litigation and knowledgeable 

about ADR processes, has recently been retained. The specific 

duties of the ADR staff, led by Ms. Smith, will include: 

a. Program structure. 

Working with the Advisory Group, the Northern District 

and other interested parties, the ADR staff will be responsible 

for improving program structure, including the design and 

implementation of an administrative system for all of our ADR 

programs. The staff will also coordinate the activities of the 

AOR evaluation consultant (see infra, pp. 24 through 26), and 

other AOR consultants that might be retained. 

-22­ 10930771 
b. Case selection. 

The ADR staff will help to evaluate and refine the 

selection criteria by which cases are assigned to particular ADR 

programs. This project will include developing additional criteria for identifying those cases (or subsets thereof) in which an 

ADR process promises to be most productive, analyzing which ADR 

processes are most appropriate for use in particular categories of 

cases, and working with the bench and bar to identify additional 

categories of cases which are appropriate for some form of ADR 

(e.g., civil rights cases, mass tort cases, prisoner 

applications). 

c. Recruitment, training and outreach. 

The ADR staff will also be responsible for the development of screening mechanisms and recruitment of a substantial 

number of additional attorneys to supplement the pool of neutrals 

in the ENE, arbitration and, if funded, mediation programs. (For 

a discussion of the recommended mediation program, see infra, 

p. 26.) This process should include, among other things, an 

interview with each applicant to determine temperament, commitment, subject matter expertise, etc. to ensure that each neutralhas the requisite qualifications. Also, the Northern District 

needs a system of replenishing its pool of neutrals that will 

maintain an appropriate balance among the various segments of the 

bar and ensure adequate coverage of subject area specialties 

(e.g., intellectual property). Intensive and repeated training 

programs for the neutrals must be designed and conducted. 

Intensive and repeated educaticlal programs for members of the 

10930771 -23­
bench, bar and client groups must be designed and conducted to 

explain the ADR programs, and to teach users to utilize these 

programs in the most productive manner. Finally, the ADR staff 

will provide a visible, accessible resource to respond to 

questions from neutrals about their assignments, and from all 

other members of the Northern District's many interested 

constituencies (e.g., client groups, bar associations, etc.) 

d. Evaluation. 

The ADR staff is intended to assist in the effort to 

design and implement mechanisms to systematically collect data 

about the Northern District's ADR programs. This project will 

include collecting and analyzing feedback from the neutrals, as 

well as feedback and suggestions from users (attorneys and clients) 

for program improvement. Systems to share information among 

neutrals must also be designed and implemented. 

e. Coordination. 

Finally, the ADR staff will work with our ADR consultant(s) in seeking support from, and coordinating the delivery 

of service among, the many bar associations and state courts within 

our jurisdiction. (This could lead to cost-sharing among all of 

these groups.) The Northern District needs to communicate regularly with staff and judicial officers in other courts to ensure that 

it is timely informed of new ideas and developments in other 

places. In this regard, the ADR staff will also be available to 

respond to the many requests for assistance and information about 

the Northern District's ADR programs. The final charge of the ADR 

staff is to work with neutrals and the Advisory Group to draft 

-24­ 10930771 
changes in the Northern District's Local Rules and General Orders, 

especially as they relate to ADR (e.g., General Order No. 26). 

3. Recommendation: ENE Evaluation Study. 

As a result of a study conducted in 1988 by the National 

Institute for Dispute Resolution of the Northern District's ENE 

program, ENE was made a presumptively permanent part of the 

pretrial system in certain kinds of cases. Accordingly, every 

even-numbered case meeting certain established criteria has been 

included in the ENE program since late fall 1988. Almost 800 evennumbered cases have been so designated. 

Some statistical data on handling ENE cases is available 

and there is a system in place for obtaining some limited information about the program from the attorney-evaluators. The 

experience of many of the attorneys and parties who have been 

involved in ENE and the evaluation of the judges who have worked 

in the program provide substantial evidence of its value; however, 

this evidence and the available statistical data have not been 

carefully and systematically reviewed to determine the extent to 

which ENE has reduced unnecessary cost and delay in resolving 

disputes. Accordingly, the ADR committee decided early on that a 

further in-depth study of ENE was the highest priority. In this 

regard, we believe that the Northern District presents a unique 

opportunity to test the ENE concept. The Northern District 

conceived the ENE program, has undertaken substantial implementation of ENE, and probably has greater experience in its 

application than any other district. 

10930771 -25­
Pursuant to funding recently provided under the Act, the 

Advisory Group has retained the University of San Francisco School 

of Law to consult with us to evaluate our ENE program, particulaz:ly 

focusing on how well it has worked to reduce unnecessary cost and 

delay, and to achieve participant satisfaction. This study wi.ll 

be designed to answer five questions: 

1. Does the ENE program reduce litigation cost and, if 

so, how much? 

2. Does the ENE program reduce case processing time 

and, if so, how much? 

3. Does ENE improve justice delivered? 

4. How can the ENE process be improved; and 

5. How can the ENE process best be monitored? 

Our proposal for the ENE study which identifies the particular 

tasks to be performed, together with our consultant's proposal and 

project schedule and our September 25, 1991 letter of understanding 

with our consultant, are attached as Appendix C to this Report. 

We plan to complete our initial study of the Northern 

District's ENE program during 1992. That study will be based upon 

our consultant's reports and evaluation as well as the prior work 

of the ADR committee and others. We expect that this will permit 

us to reach more definitive conclusions about the value of ENE in 

reducing unnecessary cost and delay in resolving disputes and 

achieving greater satisfaction for litigants. Assuming our conclusions are consistent with the prior experience of informed 

participants, neutral evaluators and judges, our plan would be as 

follows: 

10930771 -26­
1. Make recommendations to extend and improve the use 

of ENE in the Northern District and nationally; and 

2. Address the expected needs for: 

a. Obtaining and training new evaluators; 

b. Continuing education and replacement of present 

evaluators; 

c. Consideration and avoidance of evaluator "burnout"; 

d. Further local rules changes and modifications; and 

e. Continued systematic monitoring and study. 

4. Recommendation: Assess Pilot Mediation Program. 

We have preliminarily concluded that it would be helpful 

in meeting the statutory goals to establish a court annexed pilot 

program offering an ADR mediation program. Such a pilot program 

would require at a minimum: 

a. Guidelines for case selection; 

b. Standards for use; and 

c. Sources and selection of mediators. 

We plan to complete our study and recommendations during 1992. 

5. Recommendation: FJC Settlement Conference Credit. 

We have concluded that substantial unnecessary cost and 

delay can be eliminated by the use of judge supervised settlement 

conferences. In order to achieve maximum benefits and encourage 

the necessary investment of judicial resources in this ADR procedure, we believe it essential that credit be given under FJC 

statistics for judicial work in conducting settlement conferences. 

The ADR committee plans to work with the Judicial Liaison Committee 

towards this goal. 

10930771 -27­
V. RECOMMENDATIONS FOR CIVIL PRO PER LITIGATION. 


A. Introduction. 

The Advisory Group has conducted a substantial 

investigation to examine the impact of prisoner and pro per 

litigation on the causes of unnecessary cost and delay in civil 

litigation in the Northern District. The effort undertaken to date 

has revealed more questions than answers. Consequently, most of 

our analysis in this area is provided in that portion of this 

Report concerning recommendations for further study (pages 49 

through 61 of this Report). However, we feel confident, at this 

point, in recommending that two measures be implemented in 1992 to 

improve the procedures pursuant to which prisoner and pro per 

litigation is handled in the Northern District. These recommendations are as follows. 

B. Recommendations. 

1. Recommendation: Retention of Attorney/Clerk. 

The current habeas clerk is dramatically overloaded with 

a caseload of habeas, civil pro per, prisoner and other section 

1983 cases. Current statistics do not distinguish among these 

types of cases. A breakdown of these cases by type as well as by 

disposition would be highly useful in evaluating where problems 

exist and how to solve them. The Advisory Group recommends the 

retention of another attorney/clerk, whose duties would be to 

assist the current habeas clerk in processing the materials as 

well as to devise a system to collect appropriate statistics. 

-28­ 10930771 
2. Recommendation: Modify General Order No. 25. 

General Order No. 25 provides a scheme by which 

attorneys can be appointed for indigent plaintiffs in civil 

actions. As a matter of practice, attorneys are drawn from the 

Civil Legal Assistance Panel pursuant to the Federal Pro Bono 

Project. '" Both programs rely upon voluntary attorneys because 

generally no funds are available to compensate attorneys. 

The Advisory Group believes that there is a lack of 

uniformity in the Northern Dis .. ict regarding the question of 

whether to appoint volunteer attorneys to represent pro per 

parties. One step which would address this issue would be to 

incorporate the procedures of the Federal Pro Bono Project 

Guidelines into General Order No. 25, and to delete the old text 

of General Order No. 25. 

In addition, current practice allows for reimbursement 

of expenses incurred by the volunteer attorneys subject to the 

restrictions of General Order No. 25 or the guidelines of the 

Federal Pro Bono Project. To avoid inconsistency in treating 

requests for reimbursement, it is suggested that court procedures 

be uniformly applied to requests for reimbursement. Adoption of 

standard court forms for reimbursement of expenses similar to 

those currently in use in the Eastern District of California is 

recommended. 

A copy of the Federal Pro Bono Project Guidelines is attached 

as Appendix D to this Report. 

10930771 -29­

9 
VI. RECOMMENDATIONS FOR MOTION PRACTICE. 

A. Introduction. 

Interviews of Northern District judges and magistrate 

judges, as well as practicing attorneys, resulted in a number of 

comments that motion practice and the procedures followed in 

briefing, arguing and the judicial handling of motions create 

unnecessary cost and delay. Also, in some instances, motions were 

not used as effectively as they could have been to narrow issues 

and to speed cases to a just conclusion. Accordingly, the Advisory 

Group recommends implementation of the following rules on a courtwide basis as part of a one- or two-year pilot program commencing 

January 1, 1992. 10 None of these rules is entirely novel; all are 

used by some courts already. All of these rules received support 

from a substantial number of those we interviewed. 

B. Recommendations. 

1. Recommendation: Tentative Rulings. 

The Advisory Group recommends the use of tentative 

rulings, to be implemented as follows. Two days prior to the date 

scheduled for hearing, each judge would issue a tentative ruling, 

by telephone or in writing. The ruling would include a short 

statement of the basis for the ruling.· Oral argument would be 

10 Some of the recommendations of the Advisory Group as to motion 

practice are contained in the Case Management Pilot Program, 

discussed at pages 31 through 47 of this Report. Thus, for 

example, the recommended Case Management Checklist includes 

provisions as to early scheduling of certain motions, the 

structuring of some cases to permit the early filing of summary 

judgment motions that might eliminate nonmeritorious issues, and 

the possible use of mini-trials to dispose of issues that are not 

subject to complete resolution by conventional summary judgment 

motions. 

10930771 -30­
optional for the losing party. In the event the court requires 

oral argument to decide the motion, the tentative ruling should so 

state and, if possible, identify the subjects upon which oral 

argument is required. ll 

Based upon the experience of judges and litigants in 

some of our state courts, the Advisory Group believes that the use 

of tentative rulings can contribute significantly to reducing 

unnecessary cost and delay in civil litigation. The San Francisco 

Superior Court reports that arguments on matters for which tentative rulings have been issued have been reduced by as much as 50 

percent. More importantly, judges in the state courts report that 

tentative rulings, including those which specify the issues upon 

which argument is required, produce more informative and focused 

arguments on the issues in question. 

2. 	 Recommendation: Notification of Final 

Decision. 

In circumstances where the court believes that no argument is required or would be useful, the Advisory Group recommends 

that the Court so notify the parties not less than two days prior 

to the date scheduled for the hearing. 

3. Recommendation: Limit Permissible Motion Papers. 

Motion papers should be limited to memoranda of points 

and authorities and supporting declarations. Relevant portions of 

discovery appended to declarations should be highlighted. 

11 For the present time, the Advisory Group's recommendation with 

respect to the use of tentative rulings is not intended to extend 

to all discovery motions. Instead, we recommend that tentative 

rulings be used in this context only when the circumstances of the 

case justify their use. 

10930771 	 -31­
The notice of motion and motion have become duplicative 

of other motion papers in light of the requirement to state the 

date, time and place of hearing in the caption of all papers filed 

in support of a motion. The specific grounds upon which the 

motion is based should be provided in the memorandum of points and 

authorities. 

The proposed order is duplicative of minute orders 

issued by the Northern District. Also, the proposed order is so 

often modified or supplemented that its initial filing has become 

unnecessary. 

3. Recommendation: Limit Permissible Pleadings. I 

Motion papers should be limited to opening, opposition 

and closing memoranda, together with supporting declarations. No 

supplemental pleadings or letters should be permitted. A subsequently decided case should be identified by letter to the court 

with citation only. No editorial comment should be permitted. 

4. Recommendation: Orders Shortening Time. 

Motions for orders shortening time should be made by 

declaration only. 

5. Recommendation: Uniform Page Limit. 

All memoranda should be limited to a maximum of 25 

pages. The rule in the Northern District should be uniform. 

6. Recommendation: Rulings on Motions. I' 

Rulings on motions should be issued within 45 days of 

the scheduled hearing date. The parties should be informed if the 

45-day period cannot be met, and why it cannot be met. 

-32­ 10930771 
I 7. Recommendation: Expedited Service. 

For motions to be heard on less than 28 days' notice, 

delivery of all motion papers by hand should be required. 

VII. RECOMMENDATIONS FOR CASE MANAGEMENT 


AND DISCOVERY PILOT PROGRAM. 


A. Introduction. 

The Advisory Group recommends implementation in 1992 of 

a Case Management Pilot Program designed to reduce unnecessary 

cost and delay in the pre-trial and trial stages of civil litigation, with an emphasis on streamlining the discovery process to 

expedite completion of trial preparation. The program utilizes a 

group of voluntarily participating judges and magistrate judges 

who implement an expedited case management system, including 

discovery limitations, in all civil cases assigned to them. The 

program: (1) utilizes accelerated.service deadlines; (2) requires 

counsel to utilize a comprehensive Case Management Checklist 12 to 

prepare case management proposals; (3) sets an early Case Management Conference for the consideration of these proposals, the 

selection of pretrial dates and deadlines, and design of a discovery program; and (4) features the issuance of a Case Management 

Order13 which implements the rulings made at the Case Management 

Conference and sets a firm trial date. 

12 A copy of the Case Management Checklist is Appendix E to this 


Report. 


13 A sample Case Management Order is Appendix F to this Report. 


10930771 -33­
The Case Management Pilot Program includes a recommended 

Discovery Pilot Program which features: (1) a presumptive mandatory information exchange, similar to that envisioned by proposed 

amended Fed.R.Civ.P. Rule 26(a)(1); (2) the use of discovery plans 

tailored to the specific needs of each case; (3) the consideration 

of limits upon the amount of time devoted to discovery, and/or the 

number of depositions and interrogatories; and (4) an early courtsupervised discovery conference (Rule 16 Conference) included as 

a component of the Pilot Program's Case Management Conference. 

We recommend that use of the Case Management Checklist, 

the early Case Management Conference, the comprehensive Case 

Management Order, and the setting of a firm trial date be mandatory for cases participating in the pilot program. Additionally, 

we recommend that the Case Management Checklist and system be 

published as an appendix to the Local Rules for voluntary use by 

counsel and judges in other civil cases. The Case Management 

Checklist should also be included in the packet of materials 

distributed by the Clerk's office with every new civil case 

filing. Counsel would be encouraged to stipulate to these case 

management procedures and to utilize them in cases not included in 

the pilot program. 

The proposed Case Management Pilot Program is designed 

to: (1) test the proposition that the early setting of a firm 

trial date promotes settlement and reduces unnecessary cost and 

delay in cases which are settled or tried, and (2) introduce and 

familiarize judges and counsel with a system of case management 

and discovery techniques designed to enable civil cases to be 

10930771 -34­
litigated on an expedited basis so that the firm trial date can be 

kept. 

The proposed Case Management Pilot Program is not 

anticipated to require any additional out-of-pocket expense to the 

judiciary. The costs of monitoring the Program's effectiveness 

have been requested as part of the Advisory Group's FY 1991-92 

request for funding under the Act. Participating judges would 

expend additional time at the outset of pilot cases to ensure an 

effective Case Management Order. However, we believe that use of 

such orders will result in an overall savings of court time in 

pilot cases, particularly a reduction in time now spent in 

resolving discovery disputes. 

B. Recommendations. 

1. Recommendation: The Proposed Pilot Program. 

All civil actions assigned to the judges who have agreed 

to participate in the Pilot Program will be automatically included 

in the Pilot Program. Participation is mandatory. Not all cases 

assigned to the Pilot Program will exhibit the same degree of 

complexity; however, the hallmark of the Case Management Checklist 

is flexibility in designing case management procedures which are 

best suited to the particular circumstances of the case. The point 

is that early attention to case management issues, control over 

discovery, and the setting of a firm trial date will promote efficiency and economy, and reduce unnecessary cost and delay, in 

relatively simple as well as large and complex cases. 

Complaints in Pilot Program cases would be required to 

be served within 30 days of filing, except on good cause shown via 

10930771 -35­
application to the assigned judge. The initial status conference 

("Case Management Conference") would be scheduled automatically at. 

filing for approximately 60 days after the filing date, and the 

Order Setting Case Management Conference would be required to be 

served by the plaintiff with the complaint. The Case Management 

Conference includes, but is not limited to, a Rule 16 conference. 

Counsel for the parties would be required to meet and 

confer, and to submit joint or separate Case Management Proposals 

to the court at least seven days prior to the Case Management 

Conference. The resulting Case Management Proposal, to be filed 

by the parties jointly, if possible, would consist of specific 

schedules, limits, dates, deadlines and procedures for the conduct 

of all pretrial discovery, motions, settlement discussions and 

trial preparation selected from the Case Management Checklist. 

The Case Management Proposals would be discussed at the 

Case Management Conference, to which the court would allot enough 

time (e.g., one hour minimum) for counsel to fully discuss and the 

court to become reasonably familiar with the parties, issues, level 

of complexity, and special circumstances or problems involved. 

Counsel of record responsible for supervising the case, and each 

party or an authorized representative of each party, together with 

an authorized representative of each insurer to whom a defense has 

been tendered, would be required to attend. The Case Management 

Conference is the comprehensive planning and "budgeting" conference 

for the case. At this Conference, specific limits on the duration 

of discovery, the number of depositions, the average or absolute 

length of depositions, and/or the number of interrogatories are 

10930711 -36­
discussed and set, subject to later modification upon good cause 

shown. 

Discovery is further streamlined by adoption of the 

"early mutual exchange" of documents. Depending upon the complexity of the case, and the anticipated cooperation and compliance of 

counsel with early mutual exchange requirements, the court may 

consider ordering early mutual exchange to occur shortly after the 

Case Management Conference, scheduling an additional Rule 16 conference within 60 days to assess the effectiveness of the early 

mutual exchange and design any additional necessary discovery 

procedures at that time. 

The resulting Case Management Order would provide 

specific discovery motion and pretrial deadlines and limitations, 

and would set future status conferences at regular intervals. The 

schedules and deadlines set at the Case Management Conference would 

include a firm trial date. The progress of the case toward this 

trial date would be assessed, and Case Management modifications 

would be implemented in order to meet the trial date goal, at 

subsequent status conferences or upon special application to the 

court. At least one supervised mandatory settlement conference 

would be scheduled, as early as practicable in the case, to be 

conducted by an assigned magistrate judge. The parties would be 

encouraged to request earlier or additional settlement conferences 

at any juncture where these might prove productive. The magistrate 

judge could be empowered to modify the Case Management Order and 

any existing schedule (e. g., to order a short moratorium on 

10930771 -37­
discovery or to expedite the completion of a particular category 

of discovery) in order to facilitate settlement discussions. 

The Case Management Conference would be utilized by the 

court to explore and encourage the resolution of pretrial issues 

by stipulation, such as stipulation to class certification where 

and to the extent class treatment is clearly appropriate; and the 

voluntary amendment by plaintiffs of pleadings to provide requisite 

particularity, or to dismiss claims or parties unlikely to survive 

Rule 12 motions. 

The magistrate judge assigned to the case would attend 

the Case Management Conference, at which referral issues would be 

determined. The court would have the option of referring some or 

all discovery matters, additional status conferences, nondispositive motions in general, or particular issues, such as class 

certification, to the magistrate judge. Moreover, the parties 

would be advised that the magistrate judge was available to 

adjudicate other matters, and to preside over the trial itself. 

The trial date will be set, and a specific period of time 

set aside for the trial, upon consideration of the submissions of 

counsel regarding the amount of pretrial preparation time required, 

and the requisite duration of trial. 

Trial length can only be estimated at the outset, but 

the estimate must be an informed one, based on early analysis by 

counsel of their claims, defenses and counterclaims. Precise trial 

time limitations (e.g., number of days or hours allotted to each 

party) will be set at the final pretrial conference. The parties 

are required to consider specific aids and procedures to expedite 

10930771 -38­
the trial. 

2. Recommendation: Case Management Time Line. 

Day 1: Civil case becomes Pilot Program case upon 

assignment to participating judge. Case Management Scheduling 

Order and Case Management Checklist issued to plaintiff for service 

on all parties, and discovery stayed pending issuance of Case 

Management Order. 

Day 30: Deadline for service of Complaint on defendants. 

Day 31-52: Counsel for parties meet and confer to 

discuss Case Management Checklist and prepare jOint or separate 

Case Management Proposals. 

Day 53: Case Management Proposals due from counsel seven 

(7) days prior to Case Management Conference. 

Day 60: Case Management Conference. Case Management 

Checklist discussed at Case Management Conference, Case Management 

Order issues, and structured discovery and pretrial proceedings 

commence. 

3. Recommendation: Discovery Limitations. 

a. Mandatory Information Exchange. 

The theory behind mandatory disclosure is that some 

information is so basic that it is wasteful of litigation 

resources to cause parties to use discovery to get it, and that 

there is no role for advocacy and the adversarial process in 

connection with the disclosure of that information. Mandatory 

disclosure proposals mayor may not include a limit on follow-up 

discovery. The Advisory Group recommends a pilot program in which 

the pilot judges will implement the exchange requirements of 

10930771 -39­
proposed Rules 26(a)(1), (d) and (g)14 for information exchanges, 

14 	 proposed amended Rule 26(a)(1) presently provides as follows: 

"Rule 26. General Provisions Governing Discovery; Dutz 

of Disclosure 

"a. 	 Required Disclosures; Methods to Discover Additional 

Matter. 

" ( 1). 	 Initial Disc losures . Except in actions exempted by 

local rule or when otherwise ordered, each party 

shall, without awaiting a discovery request, provide 

to every other party: 

.. (A) 	 the name and, if known, the address and 

telephone number of each individual likely to 

have information that bears significantly on 

any claim or defense, identifying the subjects 

of the information; 

.. (B) 	 a copy of, or a description by category and 

location of, all documents, data compilations, 

and tangible things in the possession, custody, 

or control of the party that are likely to bear 

significantly on any claim or defense; 

" (C) 	 a computation of any category of damages 

claimed by the disclosing party, making 

available for inspection and copying as under 

Rule 34 the documents or other evidentiary 

material on which such computation is based" 

including materials bearing on the nature and 

extent of injuries suffered; and 

It (D) 	 for inspection and copying as under Rule 34 any 

insurance agreement under which any person 

carrying on an insurance business may be liabl~! 

to satisfy part or all of a judgment which may 

be entered in the action or to indemnify or 

reimburse for payments made to satisfy the 

judgment. 

"Unless the court otherwise directs or the parties 

otherwise stipulate with the court· s approval, these' 

disclosures shall be made (i) by a plaintiff within 30 

days after service of an answer to its complaint; (ii) 

by a defendant within 30 days after serving its answer 

to the complaint; and in any event, (iii) by any party 

that has appeared in the case within 30 days after 

receiving from another party a written demand for 

accelerated disclosure accompanied by the demanding 

(continued ••• ) 

10930771 	 -40­
but with the following two differences: 

(1) Whether or not to exempt the case from mandatory 

exchange as well as the timing of the exchange would be decided by 

the court at the Case Management Conference. The court should be 

involved in resolving these important discovery decisions as part 

of an overall plan. 

(2) At the Case Management Conference, the court will 

set a date for a second conference to be held following completion 

of the exchange, and following the filing of supplemental 

discovery conference statements reflecting the results of the 

exchange. At the second conference, the court will resolve what, 

if any, further discovery is required, and issue a discovery order 

to that effect. 

i. 	 Background: The Discovery Committee's 

Investigation. 

During the past six months, the Discovery Committee of 

the Advisory Group has been considering the extent to which 

pretrial discovery is a cause of needless expense and delay in 

civil litigation in the Northern District, and the steps that 

could be taken to reduce if not eliminate these discovery-related 

problems. Relatively little time was spent discussing whether 

discovery was a problem since the Act and its legislative history 

show discovery to be a chief cause of delay and expense in civil 

14( ••• continued) 

party I s disclosures. A party is not excused from 

disclosure because it has not fully completed its 

investigation of the case, or because it challenges the 

sufficiency of another party's disclosures, or, except 

with respect to the obligations under clause (iii), 

because another party has not made its disclosures." 

10930771 	 -41­
litigation. In interviews with our judges and magistrate judges, 

the problem most often referred to is discovery misuse and abuse. 

If anecdotal information were a guide, then the Discussion Forum 

held at Golden Gate Law School provided an endless and varied list 

of discovery abuses. Correctly, we think, the focus of attention 

was on solutions. 

To that end, we divided among us the task of identifying 

solutions already proposed by others and those actually implemented so that their impact could be assessed. Thus, we reviewed 

and studied the local discovery rules of federal and state courts 

throughout the country to see what discovery innovations had 

recently been adopted, including the individual rules of our local. 

district court judges. Also, we conducted a search of discoveryrelated literature to see if others had come up with any creative 

ideas. Meanwhile, we looked carefully at recently proposed amendments to the Federal Rules of Civil Procedure dealing with 

discovery, and particularly Rule 26{a) dealing with information 

exchanges. Proposed Rule 26(a) is the outgrowth of our own Judge 

William W. Schwarzer · s thinking, and Magistrate Judge Brazil's 

recent experimental orders in several securities cases. 

This proposed reciprocal exchange requirement was 

advanced by Judge Schwarzer in "Slaying the Monster of Cost and 

Delay: Would Disclosure Be More Effective Than Discovery?", 

74 Judicature 178 (1991). In that article, Judge Schwarzer had 

also proposed that after disclosure no discovery would be permitted against an adverse party without a court order "on a 

showing of particularized need"; moreover, the burden would be on 

-42­ 10930771 
the party seeking discovery. Id. at 181. This proposed limitation on post-exchange discovery did not make its way into the 

proposed amended rules [but see proposed Rule 26(b)(2)(iii)]. 

Magistrate Judge Brazil has advocated similar information exchanges, and in several securities actions he has entered 

orders to this effect. E.g., Klein v. King, 132 F.R.D. 525 (N.D. 

Cal. 1990). The Klein order provides for disclosure in three 

stages: (1) reciprocal exchange of "core information" with 

limited depositions and interrogatories; (2) an optional stage of 

two months with focused discovery and then settlement discussions; 

and (3) final discovery for trial. We interviewed attorneys 

representing parties in some of these cases which have had mixed 

reactions to the staged discovery format. Basically, they favor 

the document exchange concept but report that the cases did not 

settle at stage 2 i the issues in the case did not crystallize 

until stage 3, so that discovery at stages 1 and 2 did not prove 

useful. Magistrate Judge Brazil believes there has been 

insufficient experience with Klein-type orders from which to draw 

any conclusions. 

Early reciprocal information exchange in civil suits has 

been adopted in at least two state courts, we learned through 

discussion with Alex Aikman of the National Center for State 

Courts. Arizona adopted Rule 26.1 of the State's Code of Civil 

Procedure which is quite similar to proposed amended Federal Rule 

26(a) (1). The Rule (proposed by a special State Bar Committee 

appointed to study litigation abuse, costs and delay) was approved 

by the Arizona Supreme Court in March 1991. Nevada has adopted 

10930771 -43­
Rule 16 in its Code of Civil Procedure which requires an early 

"case conference" at which the attorneys must exchange all documents "reasonably available to a party which are then contemplated 

to be used in support of the allegations or denials .•.. " The 

Rule also requires an exchange of non-expert witnesses, along with 

a description of their testimony. 

We have talked to Supreme Court Justice Jerry Whitehead, 

who chaired the committee which drafted a report regarding 

Rule 16.1 and other reforms adopted by the Nevada court. Justice 

Whitehead enthusiastically reports that experience under Rule 16.1 

has produced earlier trial dates and settlements with greatly 

reduced expenses to all concerned. One problem has been the 

practice of some attorneys to stipulate away the reciprocal 

exchange requirement of Rule 16.1. 

Attorneys at the Discussion Forum enthusiastically 

endorsed the concept of Rule 26.1. One concern raised had to do 

with the proposal in Judge Schwarzer I s article regarding postexchange discovery (by order only, with the burden on the party 

seeking discovery). Specifically, the concern was that les.s 

ethical attorneys might not produce damaging documents in the 

information exchange, making it difficult or impossible to gain 

access later. Many responded that these same concerns exist unde:r 

existing discovery rules. The proposed rule, like proposed 

amended Federal Rule 26, does not mandate this burden on post-­

exchange discovery. 

Our Committee also prepared a detailed outline of 

discovery-related issues and potential reforms which served as a 

10930771 -44­
catalyst for a frank discussion among attorneys and clients at the 

Discussion Forum. We have also benefitted greatly from the wideranging discussion held at the Advisory Group's September 7, 1991 

retreat. 

From what we could see from our own investigation, the 

nub of the discovery problem is two-fold: first, and foremost, 

attorneys bring to bear on pretrial discovery the same sort of 

adversarial skills and strategies they employ in the trial of the 

lawsuit. Winning or losing discovery battles are equated with 

winning or lOSing the trial war. Unless the very adversarial 

structure of civil ,litigation is changed, we cannot expect 

attorneys to make a meaningful change in their conduct. The 

penalization of attorneys through sanctions has not and will not 

make a material impact upon these discovery problems. The 

solution, instead, must be a structural one, and it is to curtail 

discovery and discovery disputes so that the opportunities and 

incentives for discovery abuse are eliminated or at the very least 

minimized. 

The second problem arises from discovery that is illconceived or, worse yet, has not an intelligent purpose to begin 

with. Attorneys who have served as early neutral evaluators have 

confirmed what judges and magistrate judges have been saying for 

a long time: Attorneys often do not prepare their case until 

trial and,' accordingly, pretrial discovery may be aimless and 

ultimately useless in resolving the dispute through settlement or 

trial. 

10930771 -45­
ii. Limitations on Discovery. 

The theory of limits on the time for and/or the amount 

of discovery is that by limiting discovery, counsel will be 

required to be more selective and efficient in the discovery 

process. 

Many states and federal districts have tried to reduce 

the cost and delay of discovery by promulgating local rules 

limiting the amount, nature and timing of discovery. Limits on 

the number of interrogatories, requests for admissions and 

document requests which may be propounded are common, and some 

courts have even enacted limits on the number of depositions in a 

case. The timing of discovery may also be controlled by use of 

local rules~ many states and districts establish mandatory 

discovery cut-off dates tied to the date of the defendant's answer 

or the initial case conference. Finally, some courts have tried 

to manage discovery by mandating that it be undertaken in stages, 

with initial discovery limited to issues which will facilitate 

early assessment of the strengths of the claims and encourage 

settlement. 

We favor early implementation of the Pilot Program tel 

study the effect of limits on the amount and timing of discovery. 

Judicial suggestion of limits on discovery, and judicial adoption 

of realistic limits proposed by the parties, forces parties and 

their attorneys to reduce their use of discovery and to complete 

discovery within a reasonable period of time. Limits also 

encourage litigants to determine how to effectively and efficiently utilize the allowed discovery to gather the information 

-46­ 10930111 
most essential to their claims. We believe that any disadvantages 

of presumptive rules will be minimized by affirming the Pilot 

Program judges' discretion to forego or defer limits if justified 

in a particular case, and to issue orders in which limitations on 

discovery are tailored to the size and complexity of the case. 

4. 	 Recommendation: Client Participation. 

The participation of clients in the formulation of a 

Case Management Plan, including a Discovery Plan, is necessary to 

assure that parties are aware of the costs and time entailed in 

civil litigation, particularly with respect to discovery. By 

participating in case management decisions, the parties will be 

able to monitor counsel's activities and assist in making costeffective decisions before discovery commences. 

One way to bring parties into this process is to require 

their attendance at the Case Management Conference, where the 

Discovery Plan is formulated. In some cases, personal attendance 

of the parties may prove a hardship, or be inappropriate given the 

nature of the case. Participating judges will review the Case 

Management Proposals and inform counsel prior to the Case Management Conference whether client attendance will be required. In 

any event, the client should be required to sign the Case 

Management Proposal being submitted by counsel upon its behalf~ 

5. 	 Recommendation: Pilot Program Monitoring and 

Evaluation. 

The progress of Pilot Program cases will be monitored to 

determine whether these pilot cases proceed more expeditiously 

than comparable non-pilot civil cases. In order to perform 

10930771 	 -47­
effective monitoring, data from case management orders will be 

input into a tracking program, and the docket sheets of program 

cases will be periodically reviewed to determine the incidents of 

discovery disputes, and elapsed time from filing to disposition. 

In order to simplify the monitoring process, the program will rel~{ 

on confidential questionnaires to be completed by the participants 

(judges, counsel and clients) for qualitative information on its 

effectiveness. The program will utilize a qualified consultant 

with civil litigation expertise to design the computer monitoring 

program and necessary inputing forms, to train monitoring 

personnel (e.g., a law school graduate or experienced paralegal), 

and to design the qualitative questionnaire. 

Confidential qualitative questionnaires will measure 

judge and attorney participants' reaction to, satisfaction with 

and suggestions for improvement of the case management system. 

The gathering and analysis of quantitative data will determine 

whether the system increases the number of trials or other 

dispositions (particularly settlements) per judge and reduces time 

from commencement to disposition, and reduces the incidence of 

discovery disputes and the level of judicial resources which must~ 

be devoted to their resolution. 

VIII. RECOMMENDATIONS FOR FURTHER STUDY. 

A. 	 What Means Should Be Used To Accomplish Firm 

Trial Dates? 

The Advisory Group believes, and evidence demonstrates, 

that a system which is able to set realistic and firm trial dates 

10930711 	 -48­
will reduce unnecessary cost and delay in litigating civil cases. 

Firm trial dates prompt earlier settlement, and save clients the 

shockingly useless cost of multiple trial preparations. '1'he 

Advisory Group was, however, divided on the best means to achieve 

this goal. Accordingly, we intend to study this issue further in 

1992 and 1993. 

The means to be considered by the Advisory Group include 

a requirement that all motions to continue a trial date be signed 

by the party on whose behalf that motion is made. We will also 

consider the viability of a system pursuant to which a "back-up" 

judge is available to try a case on the scheduled trial date, if 

the regularly assigned judge is not able to hear the matter. The 

back-up judge might be a senior judge, a visiting judge or another 

Article III judge. The Advisory Group will also study how the AO 

might give statistical "credit" to the judge who tries the case 

under such a program. We are cognizant that any "back-up judge" 

concept raises many issues. For example, should parties be 

allowed to reinstate a jury demand if they waived the demand with 

the understanding that the assigned judge would try the case? 

Also, is a firm trial date worth relinquishing the judge who is 

familiar with the case, particularly in light of the new or 

increased emphasis on pretrial case management? The Advisory 

Group will investigate how frequently such reassignments would 

occur, and whether the designation of only some types of cases for 

inclusion in the program would alleviate some of the concerns. 

Finally, the Advisory Group intends to study comparable systems in 

other jurisdictions. 

-49­ 10930771 
B. Should the Losing Party Be Required To Pay for 

the Cost of Discovery Motions? 

The Advisory Group will study whether the losing party 

should be required to pay for costs of discovery motions, with 

some consideration being given to the assets of the party. 

C. 	 What Is the Impact of Prisoner/Pro Per 

Litigation on the Northern District? 

1. 	 Introduction. 

The Prisoner/Pro Per committee of the Advisory Group was 

organized to examine the influence of prisoner and pro per civil 

litigation on the causes of unnecessary cost and delay in the 

Northern District. The members of the committee include the U.S. 

Attorney for the Northern District, the Chief Trial Attorney for 

the San Francisco City Attorney's office, two prisoner rights 

advocates, and three attorney members with no professional role in 

the prisoner/pro per field. 

The committee has gathered information from a variety of 

sources, specifically including judges from the Northern District, 

judicial officers from other federal court districts, and the 

California Attorney General's office (including several meetings 

with those attorneys primarily responsible for representing 

California in all state prisoner litigation). In addition, the 

committee has tracked pending federal crime legislation regarding 

its proposed habeas corpus revisions, has conducted literature 

searches on pertinent issues and has examined the statistics 

available on the impact of prisoner/pro per litigation on the 

Northern District's docket. The committee has also met with 

10930711 	 -50­
advocates of simplified procedures for non-prisoner pro per 

litigants to consider ways of streamlining the handling of those 

cases. 

The effort undertaken to date has revealed more questions than answers. Consequently, this portion of the Report 

focuses primarily on studies to be done to more fully understand 

the role that prisoner/pro per cases play in the Northern 

District I s effort to control unnecessary cost and delay. The

immediate action steps recommended by the committee, and approved 

by the Advisory Group as a whole, consist of: ( 1) adding one 

person to the Northern District staff to process prisoner 

litigation; and (2) changes in General Order No. 25 relating to 

appointment of counsel in civil prisoner/pro per cases. Each of 

these steps is discussed earlier in this Report at pages 27 and 

28. 

2. Nonprisoner Pro Per Litigation. 

Little is known statistically about nonprisoner pro per 

cases because the AO does not identify litigation brought by this 

group in its statistical summaries. The Northern District I s 

Clerk I s Office began to collect some data on pro per cases

beginning in May 1990. The data consists of the name of the case 

and the case category (civil rights, contract, etc.). It combines 

prisoner and nonprisoner pro per cases, so only a rough measure of 

the volume and nature of nonprisoner pro per cases is possible. 

No statistical data prior to May 1990 is known to exist on 

Northern District nonprisoner cases, and trends are more difficult 

to assess. 

10930711 -51­
The anecdotal information on this topic consists of the 

responses received from the judiciary of the Northern District, 

together with information and impressions of court personnel, 

members of the committee and attorneys associated with pro per 

programs. 

To date, the interviews appear to shed little light on 

nonprisoner pro per trends. The responses indicate in some cases 

that judges combine prisoner and nonprisoner pro per cases in 

their responses. The few judges that addressed the pro per 

question made the following suggestions: (1) that Congress should 

consider some sort of "frivolous litigant" statute, presumably to 

deter abuse of the court system by pro per litigants; and (2) that 

referral of pro per cases to magistrate judges for screening may 

not be sensible since their time is better spent on other matters. 

One judge observed that pro per cases did not contribute 

significantly to cost and delay problems. 

Turning to issues and suggested changes, we intend to 

study the following proposals: 

(1) Examine the simplified litigation rules in use in 

the Federal Tax Court, and consider adapting them to small case 

pro per litigation; 

(2) Consider using a judicial officer as a case manager 

in small pro per cases to streamline and simplify the issues 

(e.g., bankruptcy trustees may act as representative of an entire 

creditor class); 

(3) Develop and market to pro per litigants explanatory 

literature and simplified procedures that will encourage them to 

-52­ 10930771 
use ADR; and 

(4) Design a system to improve the statistical data on 

nonprisoner pro per cases so we are better able to assess the size 

of this class of cases and judge whether procedural reforms are 

worthwhile. 

3. Impact of Prisoner Litigation. 

The AO statistical reports on the federal courts contain 

specific information on prisoner litigation. Therefore, historical data and evidence of trends is available to a limited extent. 

Based upon these statistics, our preliminary analysis reveals the 

following trends: 

(1) Since 1982, the number of prisoner cases filed in 

the Northern District has steadily increased from 248 cases in 

1982 to 844 cases in 1990. 

(2) Nationally, prisoner cases increased by 26.3% 

between 1986 and 1990. 

(3) In the Northern District, prisoner cases increased 

by 43.8% between 1986 and 1990. 

(4) As a percentage of annual filings in the Northern 

District, prisoner cases represented about 13% of the SY 1988-90 

filings. 

(5) During SY 1988-90, 12% of the pending prisoner 

cases in the Northern District were terminated and 5.5% of those 

were three or more years old. 

(6) During SY 1988-90, 3.9% of the total number of 

civil cases terminated in the Northern District were three or more 

years old. 

10930771 -53­
(7) According to the weighted caseload table measuring 

the impact of different types of cases on judges I workload, 

prisoner cases represented about 6% of the workload in the 

Northern District during SY 1988-90. 

4. 	 Current Issues Relating to Prisoner 

Caseloads in the Northern District. 

A number of potential impacts on the civil caseload of 

the Northern District need to be considered as part of the 

Advisory Group's study of the prisoner caseload. The most visible 

of the current issues are as follows: 

a. Death Penalty Cases. Currently there are 310 

prisoners awaiting execution of death penalties in the California 

prison system. All 310 prisoners permanently. reside in San 

Quentin. Petitions for federal review of their sentences go to 

the district court in the county in which they were sentenced. Of 

those prisoners, it is understood that only one, Robert Alton 

Harris, has substantially exhausted his remedies in the federal 

court system. 

It is presumed that at some point a drastic increase in 

activity in the Northern District can be expected to occur as 

result of these prisoners. A shortage of defense counsel and the 

exhaustion of state remedies are among the reasons cited for the 

belief that the impact has not yet been felt. If Mr. Harris is 

executed, this may also accelerate the legal process for other 

prisoners as the reality of carrying out death sentences in 

California impacts the thinking of the publiC, prosecutors and 

defense attorneys. 

10930771 	 -54­
Judges in the Northern District have been dealing with 

review of state death penalties for some time. One project that 

needs to be undertaken is a study of just how much time is spent 

on these cases so that their potential impact on the docket can be 

better assessed. 

Another study should be done to assess the trend of the 

number of prisoners on death row. In recent years, the number of 

affirmances of death sentences by the California Supreme Court has 

increased, but we do not know how many new death row inmates to 

expect in future years. Examination of conviction rates and 

possible demographic changes would shed light on these trends. 

b. Impact of New Prisons. Currently, there is one 

federal prison in the Northern District (Pleasanton) and three 

California prisons (San Quentin, Soledad and Pelican Bay). 

AdditionallyI there are numerous county jail facilities. A 

telephone survey of state and federal agencies indicates that at 

this time there are no immediate plans to build new facilities in 

the Northern District. 

Pelican Bay is a new state prison near Crescent City and 

has recently spawned a flurry of prisoner petitions in the 

Northern District, the majority of which relate to prison 

conditions. Whether this is a normal occurrence when a new prison 

is opened is not known. An assessment of this phenomenon would 

assist in gauging the impact of new prisons opened in the Northern 

District in the future. In that regard, the state prison 

population is currently at about 100,000; by one estimate, it is 

expected to grow to 200,000 by the year 2000. To the contrary, 

10930171 -55­
however, some of the relevant literature predicts a gradual 

decline in the growth of the prison population. 

c. Federal Habeas Corpus Changes. Recent cases 

decided by the U.S. Supreme Court are significant for the future 

of prisoner litigation in the Northern District. While at first 

blush the new case law would seem to potentially reduce the volume 

of state prisoner litigation in the federal courts, the changes 

may actually increase the time spent on these cases by district 

court judges. Further consideration of these impacts will bE~ 

needed. 

The thrust of the recent Supreme Court cases has been to 

limit federal court habeas corpus review of state criminal cases. 

Of most immediate potential impact is the decision in McCleskey v". 

Zant, 111 S. Ct. 1454, 113 L. Ed. 2d 706 (1991) which, in essence, 

limits state prisoners to a single federal habeas corpus review of 

their state conviction. In Coleman v. Thompson, 111 S. Ct. 2546,­

lIS L. Ed. 2d 640 (1991), the Supreme Court ruled that failure on 

the part of the prisoner to comply with state procedural rules 

bars federal habeas review absent of showing of good cause for the 

procedural default or a showing of extraordinary circumstances. 

In Ylst v. Nunemaker, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991), 

the Supreme Court ruled that the federal court reviewing a habeas 

petition by a state prisoner could rely upon a routine denial of 

review by the highest state court to conclude that the state court. 

relied upon state procedural default law in denying the review. 

Thus, based upon Coleman, the court could then deny review of the 

habeas petition. 

10930771 -56­
These and certain earlier Supreme Court rulings, such as 

Teague v. Lane, 109 S. Ct. 1060 ( 1990), seem to limit federal 

court access for state prisoners. However, interviews with 

attorneys in the California Attorney General's office indicate 

that the burden on the district courts may actually increase, at 

least for a time. This may occur because the effect of McCleskey 

is to give the state prisoner only one chance for federal review, 

thus the single habeas petition will have to be exhaustive and 

detailed. This will encourage counsel for prisoners to include in 

the one federal habeas petition every possible ground for relief. 

Arguably, the petitions will include many issues that might not 

normally have been raised. The federal courts will have to 

contend with these issues to some extent. 

Moreover, representatives of the Attorney General's 

office believe that the process of reviewing state habeas 

petitions may become more time consuming because of Ylst and 

Coleman. This may occur because the judges will now have to 

consider whether a default has occurred as well as whether there 

is good cause for the default and whether other extraordinary 

circumstances exist that would justify relief. 

Attorneys with the Attorney General's office also 

discussed another potential source of additional federal habeas 

petitions from prisoners. In recent years, there has apparently 

been a sizable increase in the number of state prisoners serving 

sentences of life without the possibility of parole. The Attorney 

General's office would normally expect significant habeas petition 

activity from this segment of the prison population, but has not 

10930711 -57­
seen such activity. There are no certain explanations for this, 

but the attorneys we talked to expect this group of prisoners to 

generate much more habeas litigation as time spent serving these 

sentences goes by. 

The Bush Administration's crime legislative package now 

before Congress contains habeas changes. The most significant 

section of the proposed bill would bar federal review of any issue 

that had already been "fully and fairly adjudicated" in state 

proceedings. (S.1241, proposed changes to 28 U.S.C. § 2254.) The 

proposed bill has passed both Houses of Congress in different 

forms, and is set for hearing before a Conference Committee. It 

appears likely that efforts to drastically curtail habeas corpus 

review in the federal courts may fail. 

d. Current Northern District Prisoner Petition 

Handling Procedures. Currently, all prisoner petitions are 

reviewed by a staff attorney employed by the Northern District. 

The caseload is such that of the approximately 1,000 petitions 

accepted for consideration last year, only about 700 could be 

reviewed with the existing staff. 

Petitions found to be procedurally adequate are assigned 

to a judge through use of the wheel. The staff attorney then 

reviews the merits of the case, prepares a memo to the assigned 

judge and forwards the file to the judge. At that point, the 

staff attorney has no further involvement with the case. 

When reviewing the merits of prisoner petitions, some 

judges use an informal discovery technique involving the 

propounding of questions to counsel for the defense. Counsel is 

-58­ 10930771 
expected to investisate the issues set forth and report back to 

the court. Often the answers are used as a basis for summary 

disposition of the prisoner petition. The Advisory Group believes 

that a study of this procedure is warranted. Our concerns include 

the issues of whether this provides fair review of the prisoner's 

claim, whether the burden on the defense counsel is excessive, and 

whether other procedures can be established that are more 

effective. 

At this time, the only contrasting system for handling 

these petitions that has been examined is the one used in the 

Eastern District of California. In that District, the cases are 

referred to magistrate judges and their staffs rather than to a 

staff attorney. The magistrate judges review the cases, and 

supervise their processing. A district judge becomes involved 

only if a trial is needed or if there is a dispositive motion to 

be heard. 

The Advisory Group recommends that a study be undertaken as part of the work to be done in the next year to look into 

the feasibility of increased use of magistrate judges in prisoner 

litigation. The practices of the Eastern District should be 

examined as should those of other districts around the nation that 

use magistrate judges for these types of cases. 

The relative merits of the two procedural systems and 

others around the country need to be studied. At this time, the 

only notable difference between the Northern District and Eastern 

District approaches is the feeling on the part of the AG's office 

that more discovery and more adversarial hearings are conducted in 

10930771 -59­
the Eastern District, possibly because the magistrate judges 

handling the cases are concerned about their decisions being 

challenged on review by the district judges. 

Information regarding supposedly experimental approaches 

to handling prisoner petitions in other parts of the country has 

been requested but has not yet been received. 

5. Summary of Prisoner Caseload Projects. 

In summary, the Advisory Group intends to conduct the 

following prisoner caseload projects: 

( 1) Examine more closely the available statistics on 

prisoner litigation and attempt to determine why the indicated 

trends are occurring. Prepare a report on what further data 

should be captured to complete our understanding of the trends in 

this type of litigation. 

(2) Acquire data on the impact of death penalty cases 

on the Northern District, and consider conducting a supplemental 

study of the experiences of the judges in the Northern District. 

Knowledge about the impact of past death penalty appeals will 

enable us to measure the likely impact of the expected large 

number of these appeals in the future. 

( 3) Assess future trends in the prisoner population. 

It is assumed that state and federal agencies will be of 

considerable help in this project, enabling us to grasp the likely 

changes in prisoner spawned litigation in the future. 

( 4 ) The nature of I and reasons for, the spate of 

prisoner litigation from Pelican Bay affords an opportunity to 

examine the impact of a new prison on a federal court docket. A 

10930771 -60­
study to this end should be considered. 

(5) The types of data currently collected should be 

examined to ensure we can measure future changes, if any, caused 

by the limitations placed on access to federal habeas remedies by 

the Supreme Court. 

(6) It is apparent that the current system of handling 

prisoner petitions in the Northern District has resulted in a 

backlog of cases. Consideration should be given to recommending 

additional staff to cope with this issue. 

(7) The question of how and when to provide defense 

counsel to prisoners litigating in the Northern District needs to 

be examined. 

(8) The apparent lack of uniformity in the handling of 

prisoner cases among the judges in the Northern District and also 

between the Northern District and other districts will be 

explored. 

(9) The feasibility of using magistrate judges to 

handle some aspects of prisoner litigation needs to be explored. 

The Advisory Group should discuss the wisdom of this approach with 

the court and determine if the use of magistrate judges in the 

Eastern District has been of sufficient benefit to propose 

experimentation with that system in the Northern District. 

(10) The utility of relying upon defense counsel and 

defendants to investigate prisoner factual complaints should be 

reviewed. The Advisory Group should study whether a more 

effective, less burdensome, way to obtain this information is 

available. 

10930771 -61­
We expect that further issues will arise as our work 

progresses. Supplemental reports will be prepared, as needed, to 

update concerned parties on our work. 

D. 	 What Is the Impact of New Legislation on the 

Northern District? 

1. 	 Introduction. 

The Act requires each Advisory Group to (1) "examine the 

impact of new legislation on the court" (§ 472(c)(1)(d» and 

(2) "analyze special problems relating to United States 

litigation." To this end, the Advisory Group has devised a plan 

of action (section two below) and has identified a number of 

issues relating to United States litigation (section three below), 

and to state and local government litigation (section four below). 

2. 	 Plan of Action. 

To prepare the following plan of action, members of the 

Advisory Group met, analyzed the issues and then commissioned an 

analysis of available literature on the subject. Based on this 

activity, we recommend that the following tasks be completed in 

three phases: 

(1) The first phase will consist of developing 

statistical and subjective information on which to base a more 

thorough analysis7 

( 2 ) The second phase will consist of a more narrow 

analysis of the impact of new legislation on the courts in the 

Northern District; and 

( 3 ) The third phase will involve the formulation of 

conclusions and recommendations. 

10930771 	 -62­
Phase I: Subjective and empirical surveys should be 

conducted within the Northern District to determine whether new 

legislation has any impact on the court. We have obtained 

informal comments from the judiciary of the Northern District, the 

U. s. Attorney, the Chief Trial Lawyer in San Francisco City 

Attorney's Office and the Chair of the statistics and technology 

committee (who has incorporated his discussions with the Federal 

Public Defender). From these comments, we believe that the impact 

of major statutes such as CERCLA, RICO and the Sentencing Reform 

Act should be examined. In addition, we believe that our analysis 

should include an assessment of policy determinations by the U.S. 

Attorney and/or the United States Department of Justice ("the 

DOJ") to use, decline to use, or emphasize or de-emphasize use of 

existing or "new" criminal or civil statutes .15 

Following a review of the information already gathered, 

the Advisory Group may determine that further surveys of judges, 

court attaches, magistrate judges, litigators or others are 

necessary. Additional empirical information may also be 

requested, including information regarding filings, motions, 

trials and other available data relating to the impact of new 

legislation on the Northern District and problems relating to 

United States legislation. 

In addition to the surveys conducted during Phase I, the 

15 For example, the Attorney General's recent policy memorandum 

(May 29,1991 memorandum to "All U.S. Attorneys") re "Operation 

Triggerlock" provides the potential for a greatly increased number 

of federal prosecutions of weapons offenses, previously left to 

local authorities. Such prosecutions could impact the docket 

significantly, depending upon implementation policy in this 

district. 

10930771 -63­
Advisory Group will attempt to determine the types of mechanisms 

available for dealing with the impact of new legislation and 

problems relating to United States litigation. Obviously, the 

alternative of no new legislation is not one that need be studied. 

However, there are other conceivable methods of dealing with the 

impact of new legislation and the problems of U. S. litigation, 

including: (1) anticipating the effects of new legislation 

through a judicial impact statement or some other pre-enactment 

review; or (2) recommending the diversion of certain kinds of laws 

or acts to administrative bodies or other non-litigation forums 

such as is being discussed in connection with the Civil Rights Act 

currently before Congress. The report of the Federal Courts Study 

Committee, dated April 2, 1990, made a number of other recommendations. We believe that these recommendations should be 

considered in the context of the circumstances we face in the 

Northern District, and a further analysis of the costs and 

benefits of these recommendations should be discussed. 

Finally, it is hoped that the Advisory Group can 

identify during Phase I the range of possible solutions to the 

impact problems by conducting a survey to identify these 

solutions. This work has already begun in connection with our 

literature search. 

It is anticipated that the activities to be undertaken 

in Phase I will be completed on or about June 30, 1992. 

Phase II: After the impacts of legislation are identified, the problems relating to U.S. litigation are more clearly 

crystallized, and the alternatives for dealing with these issues 

10930771 -64­
are identified, it will be useful to then select a representative 

sample of new legislation which has had a significant impact on 

the Northern District during the last decade. Case studies could 

be conducted to determine what anticipated and unanticipated 

effects and problems occurred. Thereafter, various solutions to 

these effects and problems could be analyzed. It is anticipated 

that Phase II would be completed by the end of 1992. 

Phase III: In Phase III, the Advisory Group will 

analyze the results of Phases I and II and determine what kinds of 

deliberations are necessary to reach conclusions and make recommendations. At a minimum, conclusions and recommendations will be 

designed to satisfy the statutory obligations set forth in the 

Act. 

3. 	 Preliminary List of Issues--Special Problems 

Relating to United States Litigation. 

a. 	 Criminal Cases. 

(1) Charging Practices: Analysis should include 

special areas of enforcement, historical analysis of caseload, 

what "drives" the caseload, potential changes in number of cases 

filed from past years, DOJ mandated changes, personnel increase in 

prosecutors, cross-designation of local prosecutors; 

(2) Plea Negotiation Practices: Analysis should 

include impact of the Sentencing Reform Act, minimum mandatory 

sentences, plea procedures used or declined by the U.S. Attorney 

and/or court; 

(3) Discovery Practices: Analysis should include time 

spent in litigating discovery disputes, "Jencks Act" (18 u. S • C. 

10930171 	 -65­
S 3500) problems, in limine motions, and Fed.R.Evid. 404(b) 

matters; 

(4) Motion Practice: Analysis should include review of 

local rules to streamline and make more efficient the use of court 

time, Sentencing Guideline hearings, Rule 12 hearings and Rule 41 

hearings; 

(5) Length of Trials: Analysis should include average 

time for trials, impact of multiple defendant cases, and 

"satellite litigation" re uncharged misconduct. 

b. Civil Cases. 

( 1) Selection of Cases: Generally the United States is 

a defendant. However, it is a plaintiff in forfeiture and false 

claim cases (for which special units within the U.S. Attorney's 

Office now exist), and can become a plaintiff in private "Qui Tam" 

cases (31 U.S.C. S 3730, et seg.). Newly created attorney positions dedicated to FIREA work (12 U.S.C. S 1833a) may impact the 

docket. 

(2) Removal: Analysis should include civil rights 

cases. 

(3) Exercise of Settlement Authority: Analysis should 

include impact of dollar amount entrusted to U.S. Attorney without 

further DOJ approval, degree of coordination/cooperation between 

agency clients and U.S. Attorney, and autonomy issues; 

(4) Alternative, Non-adjudicatory Procedures: The U.S. 

Attorney's office uses ENE and the arbitration system. Although 

the original practice was for three arbitrators per case, the 

panels have dropped to one arbitrator in many cases. Three 

-66­ l09~0771 
arbitrators may add to the perception of fairness for both 

parties. That perception might improve the parties' willingness 

to accept the award, and not to seek de novo review. 

(5) Summary Judgment: Our analysis should include 

practices relating to the timing of, and success rate in, summary 

judgment motions in the Northern District. 

4. Preliminary List of Issues--Special 

Problems Relating to State and Local 

Government Litigation. 

( 1 ) Habeas Corpus Litigation: The Advisory Group 

believes that capital punishment habeas corpus matters will 

increase in the next several years, which will likely have a 

serious effect on the workload in the Northern District. The 

habeas corpus committee is responsible for investigating this 

subject area. 

(2) Procedures by District/State Attorneys and Other 

Prisoner Litigation: The habeas corpus committee is also investigating this area. 

(3) Others: The Advisory Group is concerned with the 

escalation of bankruptcy cases in light of the current economy and 

the savings & loan collapses. This aspect of the federal court 

burden should be investigated. 

IX. CONCLUSION. 

As we said at the outset, this Report is but a 

beginning, and much remains to be done. The Advisory Group wishes 

to thank the Judicial Liaison Committee of the Northern District, 

10930771 -67­
together with the Clerk I s Office, for providing us substantial

time and assistance. We look forward to working together in 1992 

and 1993 towards achieving the goal of the Civil Justice Reform 

Act--the reduction of unnecessary cost and delay in civil 

litigation.. 

~ik\vl~~. The Advisory GrOUP ~ 

-68­ 10930771 
APPENDIX A 


CIVIL JUSTICE REFORM ACT 


ADVISORY GROUP 


NORTHERN DISTRICT OF CALIFORNIA 


MEMBERSHIP LIST 


Jerome I. Braun, Esq. 


Farella, Braun & Martel 


235 Montgomery Street, 30th 


Floor 


San Francisco, CA 94104 


Donna J. Brorby, Esq. 


Turner & Brorby 


750 Battery Street, 7th 


Floor 


San Francisco, CA 94111 


Elizabeth J. Cabraser, Esq. 


Lieff & Cabraser 


275 Battery Street 


30th Fl. 


San Francisco, CA 94111 


William B. Chapman, Esq. 

Rogers, Joseph, O'Donnell 

& Quinn 


311 California Street, 10th 


Floor 


San Francisco, CA 94104 


William I. Edlund, Esq. 

Pillsbury Madison & Sutro 

P.O. Box 7880 


San Francisco, CA 94120­

7880 


Pauline Fox, Esq. 

Pillsbury Madison & Sutro 

P.O. Box 7880 


San Francisco, CA 94120­

7880 


Melvin R. Goldman, Esq. 


Morrison & Foerster 


345 California Street 


San Francisco, CA 94104­

2675 


Janis Harwell, Esq. 


Thelen, Marrin, Johnson & 


Bridges 


Two Embarcadero Center 


San Francisco, CA 94111 


10939507 


John N. Hauser, Esq. 

McCutchen, Doyle, Brown 

& Enersen 


Three Embarcadero Center, 


28th Floor 


San Francisco, CA 94111 


Henry S. Hewitt, Esq. 


Erickson, Beasley & Hewitt 


12 Geary Street 


San Francisco, CA 94108 


Susan Y. Illston, Esq. 


Cotchett & Illston 


840 Malcolm Road, Suite 200 


Burlingame, CA 94010 


Michael A. Kahn, Esq. 


Folger & Levin 


275 Battery Street 


3rd Floor 


San Francisco, CA 94111 


James P. Kleinberg, Esq. 

McCutchen, Doyle, Brown 

& Enersen 


Market Post Tower 


Suite 1500 


55 South Market Street 


San Jose, CA 95113 


Theodore A. Kolb, Esq. 


Sullivan, Roche & Johnson 


333 Bush Street, 18th Floor 


San Francisco, CA 94104 


Jerrold M. Ladar, Esq. 


507 Polk Street, Suite 310 


San Francisco, CA 94102 


Michael G. W. Lee, Esq. 


Minami, Lew, Tamaki & Lee 


388 Market Street 


Suite 1080 


San Francisco, CA 94111­

5315 


A-I 

John P. Levin, Esq. 


Folger & Levin 


275 Battery Street 


23rd Floor 


San Francisco, CA 94111 


George W. (Bill) Maloney, 


Esq. 


201 N. Civic Drive 


Suite 210 


Walnut Creek, CA 94596 


William T. McGivern, Jr., 


Esq. 


United States Attorney 


450 Golden Gate Avenue 


San Francisco, CA 94102 


William C. McNeill, III, 


Esq. 


Employment Law Center 


1663 Mission Street 


Suite 400 


San Francisco, CA 94103 


Armando M. Menocal, III, 


Esq. 


Public Advocates, Inc. 


1535 Mission Street 


San Francisco, CA 94103 


Malcolm A. Misuraca, Esq. 


One Bush Street, Suite 1380 


San Francisco, CA 94104 


Reporter 


Professor Mort P. Cohen 


Golden Gate University Law 


School 


536 Mission Street 


San Francisco, CA 94105 


Professor Robert H. Mnookin 


Stanford Law School 


Stanford, CA 94305 


Kimberly A. Reiley, Esq. 


Office of the City Attorney 


Fox Plaza, 6th Floor 


1390 Market Street 


San Francisco, CA 94102 


Amitai Schwartz, Esq. 


155 Montgmery Street 


Suite 800 


San Francisco, CA 94104 


William M. Spencer 


700 Larkspur Landing Cr. 


Suite 199 


Larkspur, CA 94939 


John M. True, Esq. 


Employment Law Center 


1663 Mission Street 


Suite 400 


San Francisco, CA 94103 


Bruce G. Vanyo, Esq. 

Wilson, Sonsini, Goodrich 

& Rosati 


2 Palo Alto Square 


Suite 900 


Palo Alto, CA 94306 


Jeffrey S. White, Esq. 


Orrick, Herrington & 


Sutcliffe 


400 Sansome Street 


San Francisco, CA 94111 


10939507 A-2 

CIVIL JUSTICE REFORM ACT 


ADVISORY GROUP 


NORTHERN DISTRICT OF CALIFORNIA 


COMMITTEE STRUCTURE 


The Advisory Group was formed in March 1991. At 

present, the following committees of the Advisory Group have 

been established: 

1. STEERING COMMITTEE. 

This committee is composed of the Co-Chairs of the 

Advisory Group, Pauline Fox and Professor Morton P. Cohen, 

together with the chairs or co-chairs of each of the nine 

committees of the Advisory Group identified below. 

The charge of this committee is to formulate policy 

and direction for the Advisory Group, and to ensure that the 

work of its committees is neither duplicative nor omits the 

investigation of any relevant area. This committee generally 

meets once every two weeks. 

2. EARLY IMPLEMENTATION/LEGISLATION. 

The charge of this committee was first to explore 

whether the Northern District should strive to achieve early 

implementation status under the Act, and then to examine the 

extent to which cost and delays in civil litigation could be 

reduced by a better assessment of the impact of new legislation 

on the federal courts. This committee has also undertaken to 

study the impact on the docket of special problems relating to 

United States, California state and local litigation. 

The analYSis provided by the committee is based upon 

information gathered from a variety of sources, including 

discussions between and among members of the committee and 

others, interviews of the judiciary of the Northern District, 

and a review of the applicable literature on the issue of, among 

other things, judicial impact statements. 

The Chair of the Early Implementation/Legislation 

committee is Michael Kahn. Members of the committee include 

Susan Illston, John Levin, William McGivern and Kimberly Reiley. 

3. CURRENT STATUS AND STATISTICS/TECHNOLOGY. 

The charge of this committee is to determine the 

current status of the civil and criminal dockets in the Northern 

District, together with attempting to identify trends in case 

filings and in the demands being placed on the court's 

resources. This committee has also undertaken to evaluate how a 

better use of technology by attorneys and the judiciary could 

help to reduce unnecessary cost and delay in civil litigation. 

10940214 

A-3 
Finally, this committee will assess what changes to the Northern 

District's new "CIVIL" electronic docket driven system should be 

made to enable the Advisory Group to monitor the efficacy of our 

recommendations and to better identify the causes of unnecessary 

cost and delay in the Northern District. 

This committee has reviewed the statistics on the 

Northern District currently available, assessed the current 

level of technology in use in the court, and has identified the 

need for additional consulting assistance to conduct a more 

thorough examination of the docket. Funding under the Act has 

been requested to fulfill this need. 

The Chair of the Current Status and 

Statistics/Technology committee is Jerrold Ladar. Members of 

the committee include William Chapman, Melvin Goldman, James 

Kleinberg, Theodore Kolb, William McGivern, Amitai Schwartz, 

John True and Bruce Vanyo. 

4. PRE-TRIAL MANAGEMENT/ACCESS~ 

5. DISCOVERY PRACTICE; 

6. MOTION PRACTICE; and 

7. TRIAL PRACTICE. 

The charge of each of these committees is to 

investigate whether there is unnecessary cost and delay 

associated with current practice in their respective subject 

area, and to propose solutions to those problems, if 

appropriate. Potential duplications and/or omissions in the 

work of these committees is handled by the steering committee, 

described above. Thus, for example, the work of all of these 

committees contributed to the Case Management Pilot Program 

discussed in the body of this Report. 

The recommendations presented by these committees and 

incorporated into this Report are based upon information 

gathered from a variety of sources. These sources include 

lengthy discussions among members of the committees, interviews 

with many members of the judiciary of the Northern District, 

review of literature currently available on the relevant issues, 

review of local rules and practices of other federal courts, 

attendance at workshops relating to these issues, critical 

analyses of current suggested changes to the federal rules, and 

dialogue between members of the Advisory Group as a whole. 

The recommendations of these committees embodied in 

this Report are also, in large part, based upon comments 

received at a Discussion Forum sponsored by the Advisory Group 

on July 31, 1991 at Golden Gate University in San Francisco. 

Individuals invited to attend included interested members of the 

publiC, together with a wide cross section of attorneys 

including those affiliated with private law firms (both large 

and small), local, state and United States governmental bodies, 

public interest groups, minority bar associations, the 

10940214 A-4 
"plaintiffs' bar," the "defense bar," academia and other 

concerned groups. Each attendee was provided with an 

opportunity to comment upon issues raised by the committees, in 

addition to presenting their own views on whether there was 

unnecessary cost and delay in civil litigation in the Northern 

District and, if so, whether any means could or should be 

adopted to reduce such cost and delay. 

Finally, each recommendation contained in this Report 

was discussed, debated and ultimately approved by at least a 

majority of the members of the Advisory Group. Such discussion 

occurred during the monthly meetings of the Advisory Group, 

culminating in a day-long retreat held by the Advisory Group 

last September. 

The Chair of the Pre-Trial Management/Access committee 

is Elizabeth Cabraser. Members of the committee include Janis 

Harwell, James Kleinberg, Kimberly Reiley, Amitai Schwartz, John 

True and Bruce Vanyo. 

The Chair of the Discovery Practice committee is 

Melvin Goldman. Members of the committee include Donna Brorby, 

Michael G. W. Lee, Armando Menocal, Malcolm Misuraca, William 

Spencer and Jeffrey White. 

The Chair of the Motion Practice committee is John 

Hauser. Members of the committee include Jerome Braun, 

Elizabeth Cabraser, Henry Hewitt, William McNeill and Armando 

Menocal. 

The Chair of the Trial Practice committee is Theodore 

Kolb. Members of the committee include William Chapman, Jerrold 

Ladar and Jeffrey White. 

8. ALTERNATIVE DISPUTE RESOLUTION. 

The charge of this committee is to assess the impact 

of the Northern District's current programs, and to consider the 

need to refine them. To this end, the committee reviewed 

general literature on alternative dispute resolution, together with publications specifically addressed to the programs in the 

Northern District. In addition, the committee met on numerous 

occasions to exchange information and ideas, attended all of the 

meetings of the Advisory Group as a whole, and participated in 

the July 31, 1991 Discussion Forum. The members of the 

committee have also participated in various state and national 

bar and professional group sponsored ADR conferences and 

workshops. The early neutral evaluation project team of the 

committee has also conferred frequently with the Judicial 

Liaison Committee, including Chief Judge Thelton E. Henderson, 

former Chief Judge Robert F. Peckham and Magistrate Judge Wayne 

D. Brazil. 

10940214 

A-S 
The CO-Chairs of the Alternative Dispute Resolution 

committee are William Edlund and Susan Illston. Members of the 

committee include Jerome Braun, Donna Brorby, Janis Harwell, 

John Levin, Bill Maloney, Robert Mnookin and William Spencer. 

9. LIAISON COMMITTEE. 

The charge of this committee is to communicate with 

other Advisory Groups and district courts, together with the AO 

and the FJC, to exchange ideas and information and to ensure 

that the work of our Advisory Group was not unnecessarily 

duplicative of the work of other Advisory Groups. 

The Chair of the Liaison committee is Malcolm 

Misuraca. Members of the committee include John Hauser, Michael 

G. W. Lee and Bill Maloney. 

10. PRISONER/PRO PER LITIGATION COMMITTEE. 

This committee was formed to examine the influence of 

prisoner and pro per civil litigation on the causes of cost and 

delay in the Northern District. The committee has tracked the 

pending federal crime legislation regarding its proposed habeas 

corpus revisions, has conducted literature searches on pertinent 

issues and has examined the statistics available on the impact 

of prisoner/pro per litigation on the docket in the Northern 

District. The committee has also met with advocates of 

simplified procedures for non-prisoner pro per litigants to 

consider ways of improving the handing of those cases. 

The Chair of the Prisoner/Pro Per Litigation committee 

is Bill Maloney_ Members of the committee include Mort Cohen, 

Jerrold Ladar, William McGivern, Malcolm Misuraca, Kimberly 

Reiley and Amitai Schwartz. 

10940214 

A-6 
Data from the Statistics Committee Report re Available Information (the "Blue Book"), 

consisting of tables of case processing and court workload statistics, will be useful in 

developing summaries, descriptive compilations, and other statistical presentations to 

establish baseline information (relating to case type frequencies, central tendencies, 

settlement percentages, etc.). The analysis of the existing database will also provide data 

necessary for questionnaire and interview development for the next stage of the project 

The second step would be to observe ENE processes in action in a small number of 

representative cases and to conduct in-depth interviews with the designers and implementers 

of the Program to get the benefit of their anecdotal impressions of its effectiveness. 

The third step would be to design questionnaires to elicit additional information from 

participants in the ENE process (lawyers, parties, and evaluators) about the costs and time 

involved in the process. The interview questions will tap the following information: i) the 

costs to the parties of ENE; ii) the resources required from the court and bar; iii) using 

comparable cases, whether ENE cases were settled or disposed of more quickly and 

inexpensively than a comparable "control group" of cases; iv) whether ENE played a 

significant role in achieving settlements of cases; v) satisfaction of participants with the ENE 

process; and vi) what types of cases or characteristics of litigants or attorneys would appear 

to be most suited to ENE. 

This phase would also include gathering data relevant to the questions the Advisory Group 

is most concerned with, including those questions posed in the memorandum entitled 

"Goals for ADR Evaluation Program." The most credible information about litigation costs 

and processing times for cases would be data coming directly from parties or their attorneys. 

The questionnaires contemplated to gather information would probably involve telephone 

interviews of ENE participants selected from among representative types of cases in the 

Program. These representative cases will include samples from different categories of 

disputes or other differentiating characteristics (e.g., amount of prayer, number of parties, 

attitude toward settlement. and other such variables), 

The fourth step would involve in-depth interviews of selected participants in the ENE 

Program in order to follow up on questions not fully answered during the prior phases of 

the project and to gather suggestions about potential improvements to the Program. This 

step would involve gathering direct information about case costs and processing times for 

comparable types of cases going through the ENE process and comparing average figures 

with averages from similar cases that did not go through the ENE Program. 

This latter step would involve gathering information from individual case files and then 

following up with attorneys or others having knowledge about specific cases. We anticipate 

being able to look at approximately 200 cases (approximately 100 ENE and 100 non-ENE). 

We would also anticipate being available to consult with the ADR Sub-Committee and those 

most closely involved in Program implementation about conclusions and rationales, 

following the submission of the project's draft and fmal reports. 

8 

C-16 
Resolution; 

6. Ms. Janice Roehl, Ph.D., Senior Vice President, Institute for Social Analysis, 

evaluator of the ABA's multi-door courthouse project; 

7. Ms. Nancy Rogers, Professor of Law, Ohio State University, and Chair, ABA 

Standing Committee on Dispute Resolution; 

8. Mr. Frank E.A. Sander, Professor of Law, Harvard University, and former 

Chair, ABA Standing Committee on Dispute Resolution; 

9. Ms. Margaret Shaw, Former Director of the Institute for Judicial 


Administration; 


10. Ms. Linda Singer, Executive Director, Center for Dispute Settlement 

Due to the importance of conducting statistical analysis of existing and other data as part of 

the project, we anticipate the need for obtaining consultation assistance of statistical experts 

and possibly others on a consulting basis. The project would also utilize law students, 

research associates (college graduates without law degrees), and lawyers to conduct 

appropriate tasks cost effectively. 

Proposal for Evaluating the Early Neutral Evaluation Program 

We understand that the Advisory Group and ADR Sub-Committee wish to conduct the 

project to evaluate ADR techniques in two phases. The fIrst would focus on the ENE 

Program, how well it is working to reduce cost and delay and improve participant 

satisfaction, and ways that the Program might be improved. The first phase would be 

directed primarily at answering the fIve questions posed above. The second phase would 

focus on evaluating the range of other ADR techniques that may be usefully employed in the 

Northern District. We would be happy to assist with both phases of the project This 

proposal, however, is only directed at work on the fIrst phase. 

Methodo}Q2Y 

The starting point for an evaluation of the effectiveness of ENE would be to clarify which 

goals the project would use to measure performance against. We assume the three most 

important goals for this project are those relating to i) litigation cost, ii) case processing 

time, iii) satisfaction of parties, attorneys, and others with the ENE process, iv) possible 

improvements in the ENE Program. and v) ways to collect better data in the future that will 

help in further assessment and improvements. While other questions are posed in materials 

furnished to us, we assume that they are subsidiary to these principal fIve and will be 

addressed only ifthe budget and time constraints permit 

Given that a good deal of data and analysis of the ENE Program already exists, our fIrst step 

would be to examine all prior evaluation reports that draw from existing data and to develop 

working hypotheses about the effectiveness of the Program, based on the positive responses 

to earlier questionnaires reflected in the studies and articles on the ENE Program. More 

recently a number of questions have been posed by the ADR and Statistics and Technology 

sub-committees, which must be clarifIed and organized. For this initial work, we would 

expect to work with a statistical consultant to draw conclusions from data already available. 

7 

C-1S 
connected ADR projects in the nation. These grants also included assistance to: more than 

fifteen theory-building centers based at major universities around the nation; more than 

thirty-five practitioner groups providing mediation and other dispute resolution services in a 

wide variety of areas. including family. community. commercial. public policy and 

environmental. and organizational settings; and about ten organizations (such at the 

American Bar Association's Standing Committee on Dispute Resolution and the American 

Arbitration Association) that help to promote broader use of ADR techniques throughout the 

nation. 

Mr. Barrett is now in private practice as a mediator and dispute resolution consultant. 

Principal projects include the Judicial Council project referred to above and a project to 

provide ongoing assistance to the County of San Mateo and the Peninsula Conflict 

Resolution Center, which have formed a partnership to expand ADR use throughout the 

County. The overall goals of this unique project are to improve service delivery and the 

implementation of justice. while containing unnecessary conflict costs. 

3. Joshua D. Rosenberg 

Professor of Law 


University of San Francisco School of Law 


Ignatian Heights 


San Francisco, CA 94117-1 080 


Telephone: 415-666-6413 


Fax: 415-666-6433 


Social Security Number: 137-40-1028 

Professor Rosenberg's experience with court procedures and ADR programs includes his 

service as a law clerk in the United States Court of Appeals and as a trial attorney with the 

United States Department of Justice. More recently, he has worked as a mediator in courtannexed programs, and has taught several dispute resolution courses at the University of 

San Francisco School of Law. including both Mediation and Negotiation. He has written 

numerous books and articles. the most recent being a major piece on mandatory mediation. 

Professor Rosenberg is the Director of the USF Mediation Clinic. He has also lectured 

extensively to state and federal lawmakers and local and state bar associations. 

4. Others 

We regularly consult with other leaders in the ADR field and would expect to be able to 

make use of their advice and counsel, sometimes at little or no cost. Among those with 

whom we have close working relationships and whose backgrounds would be relevant to 

this project are the following: 

1. Ms. Madeleine Crohn, President, National Institute for Dispute Resolution; 

2. Ms. Linda Finldestein, former Director of the Division of Research, Evaluation, 

and Special Projects of the District of Columbia Superior Court; 

3. Mr. Craig McEwen. Professor of Sociology and Anthropology. Bowdoin 

College. evaluator ofcourt-connected ADR programs throughout the nation; 

4. Ms. Marguerite Millhauser. ADR Consultant to the District of Columbia 

Superior Court for the implementation of the multi-door project; 

5. Mr. Larry Ray. Executive Director. ABA Standing Committee on Dispute 

6 

C-14 
Additional information about the principal investigators is presented below: 

I. H. Jay Folberg 

Dean and Professor of Law 


University of San Francisco School of Law 


Ignatian Heights 


San Francisco, CA 94117-1080 


Telephone: 415-666-6304 

Fax: 415-666-6433 

Social Security Number: 349-32-8400 

Jay Folberg's experience with court procedures and alternative dispute resolution programs 

includes more than fifteen years of mediating cases, writing about and teaching ADR and 

civil procedure at law schools in California, Oregon. and Washington and at the National 

Judicial College in Nevada, and sitting as a judge pro tern for more than ten years. 

He has served as Chairman of the ADR section of the American Association of Law 

Schools, President of the Association of Family and Conciliation Courts, President of the 

Academy of Family Mediators, and is on the Board of the Northern California Council for 

Mediation. He has been an ADR consultant and advisor to courts in Arizona, Florida, 

Indiana, Connecticut, Canada, and New Zealand, as well as to ADR and judicial 

administration research projects funded by federal, state, and private grants. 

Dean Folberg has served on the Mediation Commission of the Circuit Court in Portland, 

Oregon and was appointed by the Governor of Oregon to the Dispute Resolution Advisory 

Council, which conducted a statewide survey of ADR and then drafted comprehensive 

legislation, now codified, to promote the use of ADR in courts throughout Oregon. 

2. Robert C. Barrett 

Principal 

Robert Barrett & Associates 

111 Anza Boulevard, Suite 300 

Burlingame, CA 94010 

Telephone: 415-375-8565 


Fax: 415-375-8119 


Taxpayer Identification Number: 94-3013595 

Robert Barrett's experience with court procedures and ADR includes more than seven years 

as the principal executive responsible for the funding and development of ADR programs at 

the Hewlett Foundation, eight years handling litigation in the federal and state courts in 

California and New York, and two years as a law clerk in the United States District Court 

for the Southern District of New York. 

Under Mr. Barrett's direction the Foundation invested more than $20 million in the ADR 

field during the past eight years, including support to a number of the most innovative courtS 

C-13 
This proposal is submitted as a jOint project by consultants who have been at the forefront of 

the ADR field over the past decade and who have extensive familiarity with ADR procedures 

in a variety of settings, including the Northern District of California. It combines the 

resources, expertise, and independence of a law school that has an outstanding ADR 

program with the wide network of contacts and broad viewpoint of a former foundation 

executive who helped create and support many of the nation's leading ADR programs. In 

addition, it draws upon experience the consultants have gained working on a similar project 

for the Judicial Council of California. That project involves developing recommendations 

on how the state courts might make more extensive use of ADR techniques. 

The highlights of this proposal are: 

a) that the three principal investigators have extensive, nationwide experience with 

ADR programs and are knowledgeable about the use of ENE in the Northern District and 

similar evaluation approaches in other jurisdictions; 

b) that we have had considerable success working with judges, court administrators, 

and the Bar both in the Judicial Council project and in earlier efforts; 

c) that we regularly confer with the key people at the forefront of developing ADR 

programs, evaluating their effectiveness, and planning their implementation, both in 

California and around the nation; and 

d) that we have access to a diverse talent pool of law professors and students, 

researchers, program evaluators, statisticians, retired judges, and other ADR experts who 

could assist the project at relatively low cost. 

Background on Consultants and Their Experience with ADR 

The three principal investigators are: H. Jay Folberg, Robert Barrett, and Joshua 

Rosenberg. Together they recently undertook a major project for the Judicial Council of 

California/Administrative Office of the Courts to develop criteria and procedures to guide 

referral of cases from state trial courts to ADR providers. The project involves gathering 

infonnation from judges and ADR providers through statewide questionnaires and in-person 

interviews to be conducted in six representative counties. The project began in June 1991 

and is scheduled to conclude early next year. John Toker is the AOC staff attorney with 

whom we are working most closely. He may be contacted as a reference, if the Committee 

so desires, at the following telephone number in San Francisco: 396-9129 

4 

C-12 
Introduction 

There is general agreement that many cases filed in the courts remain in the justice system 

too long before disposition by trial, settlement. or closure. This results in excessive legal 

fees and other costs to litigants. To address this problem, a wide range of "alternative 

dispute resolution" (ADR) procedures have been developed, which help facilitate faster and 

cheaper dispositions of cases and enhance creativity and flexibility in structuring solutions to 

disputes. 

One such procedure, Early Neutral Evaluation (ENE), was developed and implemented in 

the United States District Court for the Northern District of California in 1985. The goals of 

the ENE Program are to reduce delay and litigation costs and to enhance party satisfaction 

with case outcomes. ENE's approach emphasizes overcoming barriers to prompt, forthright 

communication between the litigants and lawyers on all sides about their cases and 

providing an early. realistic analysis of cases before large amounts of time and money are 

spent. 

The Northern District's Advisory Group established pursuant to the Civil Justice Reform 

Act desires to conduct an evaluation of the District's ADR programs, beginning with its 

nationally known ENE Program. The ENE Program evaluation would focus on the 

following questions: 

1. Does the ENE Program reduce litigation costs to parties and, if so, by 

how much? 

2. Does the ENE Program reduce case processing time and, if so, by how 

much? 

3. Does the ENE Program improve the administration of justice (as reflected 

in satisfaction levels) for parties. attorneys, or others involved 

in the Program? 

4. How could the ENE process be improved? 

5. How could the ENE Program best be monitored and documented so that 

useful data might be routinely collected on its effectiveness 

and improvements made in the Program in the future? 

A number of other questions have been raised, relating to conclusions that might be drawn 

from analyses of case file statistics or from interviews with participants in the ENE 

Program. Following the ENE Program evaluation, the Committee plans to undertake a 

broader examination of other ADR techniques used by the Northern District. 

This proposal is directed only at paragraph 1 of the Advisory Group's August 25, 1991 

request to evaluate the Northern District'S ENE Program and aims to gather, within 

whatever budgetary and time constraints might exist. the most credible data possible to 

provide answers to the five questions listed above. We would also be interested in assisting 

with other ADR work contemplated by the Advisory Group (e.g., training, expert 

consultation concerning a possible mediation program, etc.), but such activities are beyond 

the scope of this proposal. 

3 

C-ll 
Table of Contents 

I Introduction 3 


II Background on Consultants and their Experience with ADR 4 


The Three Principal Investigators 


Jay Folberg 5 


Robert Barrett 5 


Joshua Rosenberg 6 


Others 6 


III Proposal for Evaluating Early Neutral Evaluation Program 7 


Methodology 7 


Tuneline 9 


IV Proposal Budget 11 


Compensation Rates 11 


Estimated Itemized Budget 11 


V List of Appendices 13 


2 


C-IO 

Proposal 


to the Civil Justice Reform Act Advisory Group and 


ADR Sub-Committee of the 


United States District Court for the Northern District of California 


regarding 


Early Neutral Evaluation and Alternative Dispute Resolution 


Submitted by 


University of San Francisco School of Law 


H. Jay Folberg. Dean 


and 


Robert Barrett & Associates 


Robert C. Barrett. Principal 


September 17. 1991 

C-9 

We do hope that we will have the opportunity to work with you and the ADR Sub-Committee 

on this project. Please let me know if we can provide any additional information or 

clarification. 

1r~& Robert C. Barrett 

Principal 

Encl. 

C-8 

Robert Barrett & Associates 


\Iediation • Facilitation • Dispute Resolution 

September 17, 1991 

William I. Edlund Via Fax: 477-4911 

Pillsbury, Madison. & Sutro 

P.O. Box 7880 

San Francisco, CA 94120-7880 

Susan Illston Via Fax: 697-0577 

Cotchett & Illston 

840 Malcolm Rd., Suite 200 

Burlingame. CA 94010 

William M. Spencer Via Fax: 258-1762 

ADR Sub-Committee 

United States District Court for the Northern District of California 

700 Larkspur Landing Circle, Suite 199 

Larkspur, CA 94939 

Dear Members of the Advisory Group: 

The University of San Francisco School of Law and my f1lTD are pleased to submit the 

enclosed revised proposal to evaluate the Northern District's Early Neutral Evaluation 

Program. 

The USF School of Law, under the leadership of Dean Jay Folberg and Professor Josh 

Rosenberg, has developed a priority interest in examining the use of alternative approaches to 

resolve disputes that otherwise would remain in court. The Law School has launched a 

number of initiatives along these lines. including establishing mediation clinics and hosting 

discussion groups of ADR service providers. My interest in ADR techniques derives from my 

eight years' work at the Hewlett Foundation as one of the principal funders of dispute 

resolution organizations nationally. 

The Law School and my f1lTD are currently collaborating on a major project for the Judicial 

Council of California on ADR. The project involves interviewing judges and ADR providers 

in six representative counties throughout the state and developing recommendations concerning 

criteria and procedures for increasing ADR use by California courts. 

We are keenly interested in working with other court systems and court committees to assess 

dispute resolution techniques and to understand better the increasingly significant role ADR is 

playing in improving the administration of justice. 

Although Jay Folberg. Josh Rosenberg, and myself will be the principal investigators and 

consultants on the project. we will have the resources of the USF Law School and faculty and 

other research assistants to help complete the task and to follow through with the Advisory 

Group and ADR Sub-Committee in assessing the full range of ADR approaches available to the 

Northern District The enclosed proposal and budget are cast with the flexibility to reduce or 

expand any part in order to conform with the expectations and needs of the Northern District 

and its Advisory Group and ADR Sub-Committee. 

III Anza Blvd.. Suite 300 • Burlingame. CA 94010 • Tel: 415-375-8565 • Fax: 415-375-8119 

C-7 
-.. • 

ENE: STATISTICAL PROFILE 

Novemb.~ 1988 throuqh Ma~Ch 1991 

766 Total ease. de.1qnated for program at tim. of filing. 

Monthly ave~aq.: 26 

Annual average: 300 (approx.) 

179 Removed from proqram prior to ENE hearing. 

75 Settled before evaluator selected. 

60 Settlea after evaluato~ selected but before ENE hearing_ 

114 Closed by dismissal, default, ~ot1on, e~c. 

ot these, only seven (7) were closed after the ENE 

hearinq. 

239 Cases in which one or more ENE"hearings were held. 

Monthly average: Eight (8) (approx.) 

Annual average: 99 (approx.) 

::0 Cases st~:: :~ ~~e pipeli:.e en route ~=ward an ENE hearinq. 

PercentaQ'! of cases designatect tor ENE in which at :east one 

hlaring 11 hela: 

36' 	 at all ca••• aesignated for ENE a~ time of f~!ing. 

(not counting ca.e. still in pipeline). 

43' 	 ot desiqnated ca.e. remaining after subtracting those 

case. that are removed from tne program. (not countinq ca••• still in tne pipeline) . 

53' 	 af designated cas•• remaining after subtracting both the 

ca... that are remov.d and the ca... that are terminated 

prior to the h.arinq date by diam1••al, default, or 

motion. 

(not counting ca••• still in the pip.lin.). 

_.tata.391 

C-6 
usefulness? 00 they feel that coat and/or delay is actually reduced. by the existing programs? 00 they feel that the ADR 

offered i. an appropriate adjunct of the court system? Do they feel that ADa offerings should be expanded? Contracted? continue 

to b. mandatory? Made volun~ry? 00 they ar;r.e/disaqrea with 

having the court offer pay-your-own-way ADR services (11ke JAMS, 

commercial mediation, etc.). 

6. How mUQh do client. and attorneys know about ADR 

bafore they enter the system? Takinq each group separately, did. 

they know about alternative. to filinq suit betore they filed suit? 

It not, would it ba worthwhile preparinq educational material. for 

clients and/or lawyers on this topic? If so, 1n what format 

(brOChure, videotape, etc.)? 

3 

c-s 
percentaqe of the control s;rroup case. resolved 

during an analogous time frame? What kinds of 

ca... (le9&1 theory and damage range) were involved 

in each group? 

(c) 	 What kinas of ca••• were included in the 114 ca••s 

uclos.d by dismissal, default, motion, etc."? 107 

of these cases ended before the ENE hearin91 and 7 

ancled after; was anythinc] useful accomplished at 

the ENE? 

(d) 	 ot the 239 "cases in wnich one or more ENE hearinqs 

were held, II how many ultimately settled, and what 

was the length of time between the ENE hearing(a) 

and the settlement? Did ENE actually stimulate a 

settlement? Speed up a settlement? Or did the 

settlement relate more to other factors, 11ke the 

eventual trial date, than to efforts at ENE? How 

does the number of ENE cases which settled compare 

to the overall parcentage of cas.. settled in the 

control group? Did. the ENE ca... which sattled 

settle faster (fewer months from filinq to 

settlement) than the non-ENE cases which settled? 

2. How did the attorneys involved in the ENE process 

react to it? Did they view it as a positive step toward resolution 

of the case? Did they teel that the evaluator was knowled~eabl., 

interested, .tc.? Did they teal that enough/too little/too much 

time was spent? Did they teel that it was held too early in the 

process? Oid they feel that the cases evaluated benetitted trom 

ENE in ways other than settlement (e.g., narrowing issues: getting 

documents on the table)? 

J • How did the clients involved in the ENE process react 

to it? It their case settled, did they feel that the resolution 

procesa was tair? Oid they feel railroaded in any way, and it so 

do they attribute it to ENE (as opposed to tneir lawyers, etc.)? 

Did they feel that they saved any money or time via ENE? If their 

case did not settle, was there anything which they feel the ENE 

process ~hould have done which would have made it more worthwhile? 

4. How did the evaluators view the ENE process? Would 

they do it again? Oi<1 they feel that they were effective? 

Ineftective? Did they teal that they were adequately supported by 

the court system in performin9 their task? Would further training 

have been usetul? How much time do they spend per ENE? Do they 

customarily hold repeat sessions? How can the ENE program be 

improved? 

s. At a more qeneral laval, how do users (both clients 

and attorneys) ot any ot the ADR programs in our court view their 

J 	 2 


C-4 

OJ_ -- N.I). CAL. COJIIUftBB 

GOILB roa APa IDLIlUl:cnr lBo9BNI 

The ADR subcommittee wi.he. to evaluate the existinq ADR 

proqrams in effect in the Northern Distriot of California. At 

pre.ant we are consi~erin9 both evaluation ot the existing programs 

as they have functioned to date (primarily ENE), and the 

pos.ibility ot lonq-term study ot the INK program. as they will 

funotion after the addition of staff and training programs currently contemplated. 

w. are aware that some statistical data exists for the 

ENE proqram from November, 1988 through March, 1991. A copy ot 

this is attached to this memo as EXhibit "A". We would like to 

evaluate both the available statistical data, currently in the 

tiles, and to obtain other statistical and qualitative data tram 

the participants in the ENE sessions. 

Our goal is to learn whether ENE helps resolve ca.es in 

a way that saves time an~ money and in a way that is satistyinq to 

the participants at a substantive level. It we learn that ENE is 

helpful in these ways, then we woul~ a180 like to determine how the 

process can pe improved to work better. 

Our preliminary questions include the tollowinq; 

1. What does the statistical information on ENE (Exhibit 

"Aft) tell us about the way ENE is presently working? For example: 

( a) Lookin9 at the statistical information on EXhibit 

"Au, why did the 75 cases "settled before evaluator 

selected" settle? Old impendlnc; ENE have anythinq 

to ~o with it? In the control qroup ot ca8•• not 

sent to ENE, what percentaqe of cases settled or 

otherwise resolved during this same time frame 

(e.q., either during the same period of weeks atter 

filin9, or prior to the first status conference)? 

What types of cases, by 189al theory and damage ranq~, were included in the 75 ENE cases which 

settled durinq this period? In the control· group 

oases which settled? 

(b) 	 Why Clid the 60 ca... "••ttled attar evaluator 

selected but betore ENE hearin9t1 settle? Did impen~ing ENE and/or the identity ot the assigned 

evaluator have anything to do with it? Again, what 

1 

C-3 
2. 	Next, the Committee needs to know how weft all the Court 

sponsored ADR processes are reducing cost and delay - which 

are cost effective, how they can be improved. should any 

ADR devices be added, is the Court best organized to further the 

use of ADR. Funding for this research must be obtained. 

Included as sources of information for conducting these projects would 

be case fiies, questionaires, existing research. and intel"liews. 

Two memos are attached which set forth the perspectives of the 

Committee on the research projects. Other information will be made 

available. 

The Committee requires an earty response to its request for research 

proposals. 

C-2 

APPENDIX C 


\VTI...LIA1\1 1\1. SPENCER 


C01l.Juitlllg Serviceslor Corporolwns 

Suite 199 Tel: (H!') ·~61-7509 

100 	Larkspur Landing Circle Fax: (..H5):':S5-1/6Z Larkspur. CA 94939 

MEMO TO: Consulting Firms 

August 25, 1991 

FROM: Northern District Committee 

cc: Brazil. Fox. Cohen, IIIston, Edlund. Ladar 

General agreement exists that civil cases remain in our system of 

justice too long before disposition by trial, settlement or closure. This 

results in excessive legal fees and other costs to litigants. 

The Northern District Advisory Group is one of the committees 

convened by the The Civil Justice Refonn Act to address the problem at 

the federallevel. To help it formulate its recommendations, the 

Committee requires that research be completed with this objective - to 

assess to what degree court sponsored ADR processes within the Northern 

District are reducing cost and delay, and how those processes can be 

improved. 

The importance of these ADA processes is underscored by the tact that 

less than 5% of all cases filed eventually result in trial. 

The research would be conducted in two stages. 

1. 	The Committee is first anxious to detennine how well Early 

Neutrai Evaluation (ENE) is working and how it can be improved. 

ENE was created by the Northem District, and is being watched 

nationally to assess whether its use should be more widespread. 

Funding for this stage of the research is in hand or obtainable. 

PLANNING • MARKETING • ACQUlsmONs • ORGANlZATJON 


C-l 

U.S. DISTRICT COURT -- JUDICIAL WORKLOAD PROFILE 


CALIFORNIA NORTHERN TWELVE MONTH PERIOD ENDED JUNE 30 

1991 1990 1989 1988 1987 1986 

Filings· 5.060 5.293 6.270 6.952 8,50~ 10.284 

OVERALL Terminations 4,718 5,225 6,761 7,846 7.928 9.713 

WORKLOAD t-------t---+---+-----+----I----I-----1 

STATISTICS Pending 5,480 5,490 5.463 5,958 6,895 6.305 

Percent Change In Total Filings Current Year 

Number of Judgeships 

Vacant Judgeship Months 

Total 

Over -4 JI las Year... • "4 

Over Earlier Years. . . - 19 . 3 -27.2 -40.5 -50.8 

14 12 12 12 12 12 

27.2 19.2 22.0 19.9 4.1 7.8 

361 441 523 579 709 857 

FILINGS Civil 332 400 483 537 662 819 ~---~-------+-----~----~------_4------~~------~ Criminal 

ACTIONS Felony 29 41 40 42 47 38 

'PER 

JUDGESHIP I--_pe_nd_in_g_C_as_es_--+__3_9_11--_4_5_>8+--_4_5_5+-__4_974-__5_74-5__5_2--15 

MEDIAN 

TIMES 

(MONTHS) 

OTHER 

Weighted Filings-­ 417 500 509 488 576 530 

Terminations 337 435 563 654 661 809 

Trials Completed 13 17 18 18 22 23 

Criminal 8 2 6 2 7 0 4 9 4 4 3 7 From Felony • • • • • ~ • 

Filing to 1----..:.-+---+------I------~----_4--~~----~ 

Disposition Civil-­ 8 8 8 8 7 7 

From Issue to Trial l' JI 1'1: - (Civil Only) 15 16 1"1 1 '"' 1;: 13 

Number (and %1 44 • ­ of Civil Cases 0 746 486 47 J 

Over 3 Years Old 9 • a 15 . 1 9 . 7 8 . 7 

Average Number 

of Fefony Defendants Filed 

per Case 

Avg. Present for 

JurY Selection 

Jurors Percent Not 

Selected or 

Challenged 

1.6 

50.41 

36.11 

1.5 1.7 1.7 

54.9t 55.63 41.64 

35.S 32.9 30.0 

37E 

6.C 

1.6 

38.04 

29. : 

212 

3.7 

1.5 

35.89 

27.3 

FOR NATIONAL PROFILE AND NATURE OF SUIT AND OFFENSE CLASSIFICATIONS 

SHOWN BELOW -­ OPEN FOLDOUT AT BACK COVER 

NUMERICAL 


STANDING 


WITHIN 


U.S. CIRCUIT 


~ D 

~ ~ 

tS L2J 


8 CJ 


o ~ ,89, ~ 

~ t2J 

~ ~ 

~ tEJ 

69 12 

LJ LJ 

not. 

B C 0 E F G H I J 

291 106S 153 44 498 195 41~ 213 522 

K L 

25 531 

• Fllmgs In the Overall Workload Statistics section tnclude crtmlnal transfers. while filings by nature of offense do 

'-See Page 167. B-2 

1991 CIVIL AND CRIMINAL FelONY FILINGS BY NATURE OF SUIT AND OFFENSE 

Type of TOTAL A

Civil 4643 76 

Criminal- 3ge 29 20 1~ 11 20 14 7'3 i q~ 7 56 .. .. .. .. 51 
.. .. ----

APPENDIX B 

U.S. DISTRICT COURT - - JUDICIAL WORKLOAD PROFILE 

WORK 

STAT 

JUDG 

TIM 

(MON 

CALIFORNIA NORTHERN TWELVE MONTH PERIOD ENDED JUNE 30 

OVE RALL

LOAD 

ISTICS 

ACT IONS

PfR 

ESHIP 

MED IAN

ES 

THS) 

OTHER 

19tO 19B9 UBB 19B1 198& 1985 

Filings· 5,293 6,270 6,952 8, 50~ 10,28~ 9,362 

Terminations 5,225 6,761 7,846 7,928 9,713 10,242 

Pending 5,490 5,463 5,958 6,89: 6,305 5,735 

Percent Change p~:( Year. .. - 15 . 6 In Total Filings Over Earlier Years... - 23.9 -37.S -48.: -43.5 Current Year 

Number of Judgeships 12 12 12 1~ 12 12 

Vacant Judgeship Months 19.2 22.0 19.9 4.1 7.8 3.3 

Total 441 523 579 70S 857 780 

FILINGS Civil 400 483 537 662 81S 732 

Criminal 

Felony 41 40 42 47 3S 48 

Pending Cases 458 455 497 575 525 478 

Weighted Filings·· 500 509 488 576 530 510 

Terminations 435 563 654 661 80S 854 

Trials Completed 17 18 18 22 23 24 

Criminal 6.2 7.0 4.9 4.4 3.7 3.9 From Felony Filing to 

Disposition Civil 8 a 8 7 7 8 

From Issue to Trial 

ICivil Onlyl 16 14 16 13 13 15 

Number (and %1 

of Civil Cases 746 486 473 37S 21~ 225

Over 3 Years Old 15. 1 9.7 8.7 6.C 3.7 4.4 

Triable Defendants-­

in Pendin~ 54: 390 641 659 681 555 Criminal ases (59.4) (46.7) (70.1 ) (78.0) (74.3) (63.9) Number (and %) 

IAvg. Present for lhri Selection 54.98 55.63 41 . 6~ 38.0~ 35.89 35.10 

Jurors·· lPercent .Not 

Selected or 35.S 32.9 30.( 29. : 27.3 28.2 ~h.llenged 

FOR NATIONAL PROFILE AND NATyRI OFa SCUIT AND OFFENSE CLASSIFICATIONS 

SHOWN aELOW - ­ OPEN FOLDOU T A:K COVER 

NUMERICAL 


STANDING 


WITHIN 


U.S. CIRCUIT 


L5 ~ 

lE.J ~ 

~ 0 

,441 ~ 

0 ~ 

1441 ~ 

~ 0 

8 L5 ~ L2J 

~ ~ 

~ L!.lJ 

.~~ 

71 11 

LJ LJ 

Type of 

1990 CIVIL AND CRIMINAL FELONY FILINGS BY NATURE OF SUIT AND OFFENSE 

TOTAl A 8 C D E F G H I J 

Civil 4801 123 499 8ge 197 31 528 792 453 223 494 

tCriminal­ 4Sj 39 2r; U 1Q 25 2' 87 16 137 ., 

K L 

8 563 

53 42 ......'­ . .. . . .. .. - ,.Iltngs In the 'Over.1I Workload St.tlStiCS section Include crlmln.1 transfers. while flhngs by n.ture of offense do not. 

--See Page 167. 127 

B-1 

-- -­ '-'" 
TllDeline 

The projected timeline will need to be worked out with the Advisory Group and the ADR 

Sub-Committee. Tentatively, we would propose a schedule as follows. All times are 

figured from the start date of the project 

1. Detailed Project Desilm Weeks 1-4 

The team will: i) confer with the Advisory Group and ADR Sub-Committee or one or two 

designated representatives from them, ii) conduct a preliminary review of the data and 

reports on the ENE Program and literature pertaining to it, iii) consult with evaluators and 

statisticians from among the informal advisOry group mentioned above, and iv) consult with 

others in order to develop detailed project plans. This phase will set project priorities and 

budget time and funds so as to address the most important issues the Advisory Group and 

the Sub-Committee want studied. 

2. Analysis of Currently Available Data Weeks 2-8 

The evaluation team will conduct a quantitative analysis of currently available data on the 

ENE Program, focussing on the issues already raised by the Advisory Group and ADR 

SUb-Committee. This will help establish a baseline of information and identify information 

that needs to be gathered through the questionnaire or interview processes. 

3. First Round of Interviews Weeks 2-6 

The team will observe ENE processes and conduct in-depth, in-person interviews with a 

small number of people who were closely involved in designing and implementing the ENE 

Program, in order to develop working hypotheses from their anecdotal impressions. 

4. Questionnaire Desijin and Data-Gatherinji Weeks 7-12 

During this phase the project team will review case files from about 1,000 ENE and nonENE cases. We would develop a list of comparable cases in approximately 10 subject 

matter areas (e.g., business and insurance contracts, motor vehicle and other torts, civil 

rights and employment, intellectual property. securities. and other cases) and gather relevant 

information about 200 such cases that could be validly compared (about 100 ENE cases and 

100 non-ENE cases). We would then prepare interview sheets to guide telephone 

interviews of a representative sampling of ENE participants (parties. lawyers. and 

evaluators) and non-ENE parties and attorneys. During this phase. the team will assess and 

test different means for gathering information in order to fmd the most cost effective. 

5. In-Depth Interviews and Qualitatiye Analysis Weeks 13-18 

Over-the-telephone interviews will be scheduled with lawyers from the approximately 200 

ENE and non-ENE cases to gather direct information about litigation costs and processing 

time. In-depth interviews will also be conducted with a few ENE participants, attorneys, 

evaluators. and others, as needed, to gather additional information, to verify preliminary 

findings about satisfaction levels, to test hypotheses from the prior quantitative analyses, 

and to gather ideas for improving the ENE Program. 

9 

C-17 
6. Preparation of Draft Report Weeks 19-22 

Principal investigators will confer together and prepare a draft report, including tentative 

findings, conclusions, and recommendations. This will draw from the entire project and 

will be done in consultation with the Advisory Group and ADR Sub-Committee so as to 

ensure that the draft report will be as useful as possible in format and content. 

7. Comments on Draft Report Weeks 23·24 

Comments on the draft report will be solicited from those interviewed and others who have 

indicated an interest in the project, including the Advisory Group and ADR Sub-Comminee. 

8. Preparation of Final Report Weeks 25-28 

The principal investigators will prepare a final report for submission to the ADR SubCommittee and Civil Justice Reform Act Advisory Group. The report will reflect the 

comments made on the draft report and will include the principal investigators' findings, 

conclusions, and recommendations. 

9. APR Sub-Committee Consultation Weeks 700 

The principal investigators will be available to consult with the Advisory Group and ADR 

Sub-Committee to assist in digesting findings and conclusions of the project aod in 

broadening the scope of analysis to include other ADR teChniques. This time will be useful 

for developing ideas 00 how improvement suggestions might be implemented. 

10 

C-18 
Proposal Budget 

After reviewing data currently available and deciding upon detailed project plans, we will 

obtain necessary statistical and evaluative consultation to analyze as thoroughly as possible 

the body of existing data and analysis on the ENE Program and to help in designing new 

data-gathering mechanisms. We would also anticipate using law students and other research 

associates to help on interview teams, in data tabulation and analysis, and in the reportwriting and preparation phases of the project to save costs. 

Compensation Rates 

Our normal compensation rates are substantially reduced because of the importance of the 

project and our interest in undertaking it. Every effort would be made to utilize a team of 

people with varied levels of experience and compensation rates, so as to complete the project 

most cost effectively. Rates for time spent on project tasks would be billed as follows: 

1. Principal Investigators' time $80 per hour 

2. Senior Research Associates' time $50 per hour 

3. Research Associates' time $30 per hour 

4. Law Students' time $10 per hour 

Estimated Itemized Budl:et 

The estimated itemized budget summarized below covers a full range of activities 

contemplated in this proposal. Because many features about the project have not been 

definitively settled at this time. we would expect to work with one or two representatives of 

the Advisory Group and ADR Sub-Committee to develop a workplan and budget that meets 

its needs and that is realistic within the time and budget constraints on the project. We 

would be pleased to make adjustments. if appropriate, because of budget limitations or to 

reflect Advisory Group or Sub-Committee priorities. Such adjustments may expand or 

contract any of the project's phases as presented below. 

1. Detailed Project Design. $ 3,200 

In this phase we would meet with the Advisory Group and ADR 

Sub-Committee, conduct a preliminary review of data available, 

consult with evaluators on the Northern District's staff. and consult 

with others to develop detailed project plans. We estimate about 

40 person hours for this phase. 

2. Analysis of Currently Available Data $ 4,800 

In this phase we would conduct a quantitative analysis of 

data already available. focussing on questions the Sub-Committee 

has raised. This would involve up to 60 hours of principal 

and statistical consultants' time. 

1 1 

C-19 
3. First Round of Interviews $ 5,600 

Here the team would observe ENE processes and different 

evaluators at work, conduct in-person and in-depth interviews 

with a small number of people who know the ENE process 

well, in order to develop a set of working hypotheses to test 

later. We estimate this phase taking up to 70 hours. 

4. Questionnaire Design and Data-Gathering $ 8,900 

This phase would involve examinations of case flles to 

pick out representative ENE and non-ENE (and also perhaps 

arbitrated and non-arbitrated) cases to study in depth. We would 

also design questionnaires or interview scripts to gather other 

infonnation. To review files from 200 cases might take an 

estimated 400 hours, most of which would be time spent by 

research assistants and law students. We anticipate this phase 

consuming a total of 480 hours. 

5. In-Depth Interviews and Qualitative analysis $ 18,400 

This would be the most important part of the project, during 

which we would interview selected attorneys and participants, 

seeking to detennine the time to disposition and costs of 

ENE as compared with non-ENE cases. We estimate studying 

about 200 cases, with 4 hours being needed for each case to 

contact attorneys by telephone and get the infonnation needed; 

overall we estimate this phase would require about 800 hours 

of research assistants' and law students' time and up to 80 

hours of principals' time. 

6. Preparation of a Draft Report $ 4,000 

Principals will confer and prepare a draft report of findings 

and conclusions from the data gathered. We estimate this to 

take about 50 hours. 

7. Comments on the Draft Report $ 1,200 

Comments on the draft report will be solicited from those 

who know the ENE program well and from others who could 

review our draft report and make helpful suggestions. We 

estimate this phase to require about 15 hours of principals' 

time. 

8. Preparation of Final Report $ 2,000 

This should be a short phase of gathering comments and making 

necessary revisions to the draft report. We estimate it requiring 

about 25 hours of principals' time. Whether this estimate is 

accurate depends in large part on the number and tenor or the 

comments made on the draft report. 

12 

C-20 
9. Consultation with the Advisory Group and ADR Sub-Committee $ 3,200 

The principal investigators will be available to consult with the 

Advisory Group and ADR Sub-Committee in following up 

recommendations made and other leads developed during the 

project We have added an amount of time here of about 

40 hours of consultation, but this amount could be increased 

or decreased substantially. 

10. Fund for Compensation of Specialists or Statisticians $ 8,000 

This amount is included in case we need to call in others to 

help in the quantitative analysis requiring special computer or 

statistical techniques. We have allowed for the possibility of 

needing up to 100 hours of such assistance. 

11. Overhead and Other Miscellaneous Expenses $ 5,000 

This amount is for telephone and mileage costs, secretarial, 

and other administrative and out-of-pocket costs. 

12. Contingency $ 5,000 

This amount (about 8 percent) would cover unanticipated 

activities needing to be included in the project or other unforeseen 

contingencies. 

Total: $69,300 

List of Appendices 

(Sent earlier and not duplicated here) 

1. Resume of H. Jay Folberg 

2. Biographical Information on Roben Barrett 

3. Resume of Joshua Rosenberg 

13 

C-21 
=~OM:SANDRA 70: 415 4'77 4'311 ?:56AM 

PILLSBURY. MADISON & SUTRO o TH f It "'I'tl;tl POST OFf"ICf; lOX r.ao ~oa IINGtet•• CI\I."OANIA SAN A"'N~I.CO. CAl..lfI'OFitNIA ."'.0 ./\,.. OI!QO. CA~'''ORNIA 

811N ..OlE, Co\I.'rQRNIA "CU"..ONJ (~.~) ••,)-1000 


WALI'W" CAtf". CAL.'O"N.... C....LI AOon&" "IV....... " 
 wAI......GfON. 0. C Ttu:x ,.,.. , 

TCl.rCOIlIr,,, (.'111.)••,;08& 

WA'H;A', on'ICI IIfIID 

01"'11:1 1>1114 ""IiMlfA 

125 Buah StrOOf 

Telephone: ( 415) 983 -1321 

Tolecopiur: (415) 477.4911 

September 2S, 1991 

Dean J~y Folberg


University of San Francisco 


School of Law 


Ignatian Height.
 San '~.nci.co, CA '4117-1080 


Dear Dean Folberqt 

This letter confirm. the understanding between U.S.P. 

School of Law (the "School) and the Northern District of 

California Advilory Group under the Civil JUBtice Reform Act 

("Group") regarding the written project which you propo". to do 

for the Group on Early N$utral Evaluation. The project shall be 

gov.rned by your propoI.l of September 17, 1991 (a copy of which 

I attAch) and by this letter. We have recommended your .n9.;e~ 

ment to the Court and the Judioial Liaison Committee and, 

subject to review of tha .election procell employed by the Group 

ana the preparation and executIon of a formal contract with the 

AdminiBtrativ$ Office of the United States Courts, we have 

determined that we wish the School to undertake th1e project for 

us. 

We expect the project be completed in three stagel, with each phase to begin upon the direction of the Groupt 8taQe 

one will incl~de the des1gn oi the project, analy81e of the ~ata 

preaently available, the initial interviews, preliminary ques­ tionnaire design and data qatherinq, and beginning the interview 

process. Interviewing and tn-depth analysis ~ill be completed 

during the second staqe, and the thirdetaoe will include the 

completing of the AnA1Y818 and submi81ion of the f1nAl wr1tten 

report. We expect the fincl report to be completed by July 1, 

1992. YOU have proposed to complete this project as a fixed 

price contrAct in the amount of ~69,300. 

You have assured UI that you can baqin work on the 

project 48 acon 48 the contract i8 signed and approved. During the project you will consult regularly with the Advisory Group's project committee, made up of William Edlund, Jerrold L6~6r, 

C-22 

FROM: SANDRA io: 415 477 4'311 SEP 2'7. 1991 9:57AM ;:::.33 

Dean Jay polberq September 25, 1991 

Page 2 

Susan Illston and William Spencer. As appropriate, your contact 


with Northern District Court records should be funnelled through
 Judge Ma~iltrate Brazil or his d••i;nee. 


If this supplement to your Proposal Latter i. aCc8pt­
 .blO, please sign the attaohed copy and return it to me. 


vary t ". 

~I'· dlund .,,/ 

Project Team H.ad c; CJRA Advisory Group Co-Chair, ADR Subcommittee 

Accepted, 

CONCURRED AND APPROVED: 

Chief Judge Thelton E. Henderson 

C-23 


APPENDIX D 

Mederal Pro Bono Project: 

of the 

U'lited States District (burt 


~thern District of california 


and 


lJ:he Bar Association of San FI anciscx> 


Volunteer Legal Services Program 


Guidelines 

1. 	 §election of cases - The Federal Pro Bono Project has teen esta.bl.ished to 

secure {Z'o tono re{Z'esentation for litigants meeti~ the follC:Wirg 

c::r iteria: . 

a. 	 lJ:he litigant must be a plaintiff, in Rogia ~rsona, in an 

action filed under TiUe VII of t:.hi""Civil R1g~ts Act of 1964, 42 

U.S.c. 52000, !!So gr an incarcerated plaintiff, 1!) gOt! ia 

i!rsore in a {Z'isoner civil rights action. 

b. 	 '!be litigant DUSt {Z'eviously have teen granted leave to file in 

forma pu~ris. ­

c. 	 In the case of TiUe VII litigants, the plaintiff JllUSt have used 

reasonable U:ut WlSuccessfuJ.) efforts to retain {Z'ivate cx>unsel 

willin;J to re{Z'esent the client CI'l a contin;Jent fee tasis, 

incl.ud.in;, but not limited to attempti~ to locate counsel. throlJ3h 

a OUifornia State Bar-aPEroved Lawyer Referral Service. 

d. 	 lJ:he (burt must determine the case is one whidl warrants {Z'o tono 

re{Z'esentation. 

2. 	 {!!ferraJ, of cases to PiI,gram - '!'he (burt may refer litigants to the 

{Z'ogram on its c:wn mtlon or up>n the granting of the motion of the 

litigant. A sample -Order Referring Plaintiff to Federal Pro Bono 

Project (etc.] - is attac::hed to these Guidelines as Exhibit -A. - C'Ihe 

goal of the p'ogram is to place wery case referred .ty the (burt with a 

volunteer attorney. Bcwever, it is Wikely the {Z'ogram will be able to 

aca:ailiocBte many IDre cases than were {Z'eviously selected for app:>inbnent 

of counsel because the pool of volunteer attorneys is limited.) 

'.ftle follc:win;J {Z'ooedure should be otEerved CI'lce a litigant has teen 

selected I¥ the Cburt for referral to the {Z'ogram: 

a. 	 '!be (burt ahould notify the Bar Association {Z'ogram Plrsonnel of 

the referral 1¥ c::anpletin3 and mallin;J the aPEro{Z'iate referral 

form. »me He two serarate refegal forms - pne for nUe YII 

mBeS (ottas:bed M Exhibit .,-) and one for Iiisoner Ciyil !tights 

aRs (attAdled M Exhibit -C">. 

b. 	 lReTiue VII cases, the (burt should give the litigant a cop.{ of 

attac.&;a 'Ii'iSEructions to Litigant- infOI'1Mtion sheet 

(attached a& Exhibit -D".) This sheet explains the {Z'ogram to 

the litigant. '!be litigant should be adronisheQ .ty the (burt to 

follc:w the instructions CI'l the sheet carefully and t.hat fallure 

to eX> 80 My result in the litigant being rell'O'w"ed fran the 

IE ogr am. 

D-l 
lege 2 

3. 

4. 

5. 

c. '.ftle o::>urt should arrange for the a~olX iate mater ial fran the 

Q)urt file to be copied and forwarded to the Bar Association 

p-ogram perscnnel with the referral form or as soon thereafter as 

the file is available. 

de '1'be BASFIVLSP staff will attempt. to locate counsel willin3 to te 

aPPJinted l¥ the Q)urt to repo&sent the client CI"I a poo b:>no 

tasis. Once a volunteer attorney is located, the staff will 

notify the referrill3 jucge of the identity of the volunteer 

attcxney. 

e. In TiUe yII cases, questions regarding the status of arT:f 

referral can be directed to: 

1. William P.artinez, Bar Association of San ftancisco (BASF) 

Volunteer Legal Services Program M.SP) Referral Cbordinator 

(764-1600) between the hours of 2:00 pn and 5:00 pn, Monday 

throl.J3h 'lhursday a."ld 9:00 am - 5:00 pn on ftidays. fir. 

1lart..iJE.z vW generally .baYe the ,K»St ~rer.t infcnatioo on 

effcxts to place any case. 

2. Joc¥ JoseIil 

BASF-VLSP Assistant Director and Sutervisi.r"J3 Attorney 

764-1600. 

3. 'l'anja Neiman 

BASF-VLSP Director 

764-1600. 

4. It'ucilla R.aJrey 

BASF Executive Director 

764-1600. 

f. In Prisoner Civil Rights cases, questions regardin; the status of 

any referral should be directed to: Amitai Scb1artz, Es;J., 398-0922. 

&ax of R~s !,!'!til four weeks after appointment of counsel. At the 

tine a litigant is referred to the ~ogram the Q)urt should stay all 

p'oceedings in the action for a peEled to and including four weeks trar. 

Qlte I VOlunteer attorney is appointed bi the Court to rmesent the tiija.nt. '!'be p.u:po5e of the stay is to permit the volunteer attoIney 

suf lcient time to meet and interview the client, review the case file, 

and CXlnduct. poelim.i.nary investigation and legal resea.rc:b. 

eintment of counsel - Once a volunteer attorney has been located, the 

Lit fi&il :issue an or:der an=ointing that attorney to repoesent the 

litigant. A sample exder is attached to these guidelines as Exhibit "E." 

I£cruitment of volunteer attQrneys - Volunteer attorneys will be 

8el.ected fran a pt.nel recruited l¥ BASP-VLSP for the p.u:poae. All 

volunteers are required to be exper ienced in litigation 2£ to have 

attended a special trltin:i..ll3 p-ogram amducted l¥ BASP-VU;P. (See 

pragraP'l No. 6 te!QI). '!he attorney will rep-esent the litigant on a 

p:o b:>no tasis, except. this arrangement shall not p-eclude the attorney 

fran acoept.ing statutory attorneys fees alarded to the litigant as the 

p'evaili..ng party or as part of a negotiated aetUement of the case. (See 

puagraP'l No. 10 belQl). 

D-2 
Page 3 

6. 	 nainina fDd Rut:efvisiQn of volunteer attor~s 

a. 	 nainirn. OOess alreac:lt exFerien~d in litigation, all 

voiunteers are required to attend a trainin;) p:o;ram SlX>nsoreo ~. 

BASF-VLSP. U\pp:axi.mately 30 ,ttorneys attended the first sua! 

traini.n3 on liti9atin;) TiUe VII actions. All received extensive 

wr itten IMterials p:etared t¥ leadin;) empl~nt cti.sc:rimination 

plaintiff's attorneys. A cop.{ of the materials is available in the 

())urt Clerk's Offi~. 'nle trainin:1 was videotaFed, and is 

available for viewin;) with materials, to any attorney interested 

in tarticip!ting in the p:o;ram. Arran:;Jements to J;articii=8te can ~ made t¥ contacting the BASF-VLSP staff at 764-1600.) 

At p:esent referrals of Prisoner Civil Rights cases will ~ 

pla~d with exFerienced attorneys. A trainin;) in this area is 

planned for late 1988 or early 1989. 

b. 	 §!.Ip!rvision. Itrr:i volunteer attorney without p:ior exfErien~ in 

the field will, up>n ac~pting a referral, also ~ assigned an 

-advisor attorney- fran arI'On;) a J;Ei.nel who are exFer ien~d in the 

sul::stantive area and who have litigated cases in federal court. 

'!be identity of the advisor shall not ~ revealed to the client, 

nor will the advisor have direct a>ntact with the client. 

7. 	 J!e9uest for reconsideration of referral for lack of merit, andlor lack of 

~ration of client - '!be p:o;ram, in CX)nsultation with this ())urt, has 

velofEd the follQiing p:o~dure for the reconsideration of any 

referral, where the volunteer attorney andlor the advisor attorney feel 

it would ~ i.JIp'oper to p:ooeed with the case due to lack of any merit, 

andlor serious lack of cooperation on the tart of the client. If, after 

p:eliminary investi9ation, the volunteer attorney andlor advisor, where 

applicable, are of the opinion that aAX>int:ment of counsel is not 

a,Arop:-iate in the case, a ac:reenin.;J panel of the Bar Association wJ.ll 

review the case. If the diSA9rees, the case will be reassi9ned to 

another attorney. If the' pmel A9rees, the Clair of the p!1lel (Amitai 

Sc.:twartz for 51983 cases, Clarles Ra<Jan for the TiUe VII cases) will 

request a meeting with the Olief JudJe and, thereafter, an a,Arop:iate 

record will be mde with the JudJeI.Ma9istrate who referred the case. If 

the JudJelMagistrate CD"Itinl.2S to be of the opinion that app:>inbnent of 

counsel is required, the Bar Association will IBM every effort to pla~ 

the case with another volLI'lteer attorney. 

8. 	 8!tus amferen~ at exp:i,ration of stay - As near a time as is p:actical 

to the expiration of the stay of p:-ooeed:i.ngs in any referred case, the 

())urt ahall exmciJct:. a status conferen~ with all puties rep:esented. 

Qle p.zrpo6e of the status conference shall be to CXIlSider whether 

expedited disCDVery and/or other p:ooeedi.n;)s are app:op:'iate to 

facilitate efficient resolution of the case. 

0-3 

Page" 

9. 	 rein't>urserent - 'l!le Court ShAll follow the I%ocedures set forth in 

General <kde{ No. 25, PlU'agra;i1 6 for reint>ursanent for out-of-pock.et 

CXlSts c:onnected with any referred CASe. However, the limit for 

rein't>ursanent in any one case shall be: increased to '2500 for cases 

referred through this p:ogram, unless an additional eount is app-opr: iate 

for good cause ahQiJ"l. 

ReiJlt:>ursable costs shall include, but not be limited to, 8B)unts 

reasonably and necessar Uy spent CIl: 

a. 	 Deposition CXISts, except to the extent reini:>ursed under the 

California State 'IYanscript Reini:>ursement Fund (described in 

General <kder 25). 

b. 	 Cop,ying 

c. 	 Service of I%ocess and delivery service for filing 

d. 	 Filing fees, if any 

e. 	 Expert consultant and witness fees, if any 

f. 	 Reasonable travel expenses for attorney 

g. 	 Reasonable investigation expenses 

h. 	 Long-distance telePlone 

It is the policy of the Court that reiJrbursement requests for this 

p:ogram be liberally consideIed. 

10. 	 ~ney fees - Although cues referred through the p:ogrmn wUl be 

etI by the attcxney on a p:o bono basis, if the plaintiff is the 

p:evailing party, the Court shall award attot'ney fees and CXlSts against 

the q:JfOSing party as p:ovided by law. Also, these rules shall not be 

CX>nstrued to require a litigant referred under the p:ogrmn to waive an 

award of attexneys fee as a condition of settlement. 

D-4 

UNITfI> STAT&S DI.S'lRIC'l' tnJRT 

) 

) 

) 

) 

Plaintiff, ) 11). 

) 

vs. 

~ .~N5WtW:J¥ ) rAY]}!; mOCEfl?m:;S PEtlDRP 

) APlOINl'Mfm' Cf gxJNSa Defendant. ) 

----------------------------) 

'!be plaintiff having requested and being in need of counsel to 

usist himlher in this matter and CJOOd and just cause appearing, 

IT IS BERCBY CJU)fRID that plaintiff ahall be referred to the Federal 

Pro Bono Project in the IIIIU"IneI set forth below: 

1> '!be clerk of this court aball forward to the Volunteer Legal 

Services Program of the Bar Association of San Francisco a copy of the 

court file with a notice of referral of the case pursuant to the guidelines 

of the Federal Pro Bono Project fot referral to a 'YOlunteer attorney. 

AT'l'ItC:J:IIf. • A· 


to Federal Pro Bono Project Guidelines 


D-5 
2) Upon bei.ng notified by the Federal Pro Bono Project that an 

attaney has been loc:.atea to represent the plaintiff, that atta:ney shall be 

aRX>intea as (X)UJ'l.Sel for plaintiff in this matter until further order of 

the c:ourt. 

3) All p:oceedings in this action are bereby stayed until four weeks 

fran the date an attcxney is app:>inted to repr:esent plaintiff in this 

action. 

IT IS s) CJU'O.fD. 

IN.tea States District Judge 

D-6 

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

•• 

IJD: 	 Tanya Neiman 

Federal Pro Bono Project 

Bar Association of san Francisco 

Volunteer Legal services Program 

685 Market Street, SUite 700 

san Francisoo, CA '(lOS 

It.!: Referral of Indigent Plaintiff in 

1E101!Dt pisqiminati9t! (flee 

Please be advised that the following client is being referred to the Bar 

AsSOCiation of san Francisco Volunteer IA!9al Services Program for epp:>int:ment of 

a volunteer att.or:ney throu;h the Federal Pro Bono Project. '!be client bas been 

9iven a CICP.i of the instruction sheet for litigants. A CCP.i of the court file is 

enclosed, or will be forwarded as 800n as it is available. 

RuIIe: 

.~~: ----------------------------------------------------­ ~e~ .: ________________________________________________ 

Message 'l\!le~ .: _h______________________ 

CUe Title: ____________________________ 

~a.ofca_: 

~.: ________________________________________________ --------------------------------------------------­

• -

Attac:bDent ... 


...1"1 pfl!dl!ral Pro Bono Pro;ect. Guidelines 


D-7 
!D: 	 AIU.tai Sc::tMartz, r..a. 

Federal Pro Bono Project 

155 MontgaDery Street, SUite 800 

San Fr anci8CO, CA Nl04 

[Please aend a CCP.r' of this form to: 

Tanya Nei.Jl8.n 

Federal Pr 0 Bono Project 

Bar Association of SIn Francisoo 

685 Market Street, Suite 700 

SIn Franci8CO, CA '4105] 

BE: Referral of Indigent Plaintiff in 


Ex ifRMf gyi1- RiAht! <Me 


Please be advised that the following client is being reerre(! to the Bar 

Association of San Francisco Volunteer IA9a1 Services Program for appoi.ntment 

of a volunteer attorney through the Federal Pro Bono Project. A CCP.i of the 

court file is enclosed, cr will be forwarded as 8OCI'l as it is available. 

Rune: 

-------------------=----------------------------------------­ ~~: --------------~----------------------------------------=

~~.: _.--------------------------------------------­


CUe ~ge~~.: Title: __________________________ -----------------------------------------_ 

'... 

Cue.: • _______________________________________________ 

~bWof QUe: _____________________________________________ 

• 

t c 

M 

Attac:b:aent ·e· 

tc Federal Pro Bcno Project GuicJel1nes 

15-8 
ra:aw.. a:> ItK) ~ 

of the 

OUted States District Q)urt 

Ibrthe.rn District of Ollifornia 

and 

'Jhe Bar AssociAtiOR of San Franci8CO 

Volunteer Legal Services Program 

In!Uuctic;m §beet for ~ti9!Dts 

h'lUe VII l'iSes 

m: 

• 

....: Judge 

Federa!"-:=D~i-st.r~i"'ct~co~ur""!t-,~No~r"!"thei""'-n~D~i"'s"!"tr-1..... •ct~Of--"lr&I""l""fil""o-r-ru.""';-aU: Referral to the Federal Pro Bono Project. 

• 

You are being referred to the Federal Pro Bono Ptoject. of the Bar 

Association of San Francisco volunteer Legal Services Program 

(MSF-VLSP). '!!lis organization will attaapt to locate a volunteer 

attorney willing to be appointed to r~esent you in your arployment 

diSCIimination case. In order to raain eligible for for this free 

legal assista.~, it is Dp:Jrtant that you follow all of the instructions 

below: 

1. 	 You will be ccntacted by the VLSP Btaff once a volunteer 

attorney has been 1Ielect:.ed for your cue. !his p:ocess may 

take as l~ as cne mnt.b to au weeks. O'a you are referred 

to the volunteer attorney, you will be expected to ~ate 

CCIII>letely with that attorney. 

2. 	 You aust r_in in cantact with the Y1SP, as instructed by 

their ataff. You aJSt not.1fy the VLSP Btaff illDediately 1£ 

you dwLnge your IIddr esa or telep,one 1'UItIer. (Wr: i te to 'lanya 

Me.iJDan, Direct:«, MSF-YtSP, 685 Jilaket Street, SUite 700, 

San FranciBc:o, C\ 14105). 

3. 	 '1tae VlSP ataff wlll refer: you to a volWlteer attorney. ~ 

E -.iss any ~int::lllent with the attorney, except in an 

eergency. If you ai.Bs any ~int:ment ell' fall to cooperate 

with your: attorney, you ay no longer be .mitled to Ieeeive 

free legal ilerVices through the Y1SP. 

AttadDent .". 


to the Federal Pro Bono Project. Guidelines 


D-9 
ttn'l'm S'l'1I:TES D1.S'I1UC'l' c:IXBT 

IOt'rHfJUi DlSlRIC'l' (F CALIPaUnA 

) 

) 

) 

) 

Plaintiff, ) }(). 

) 

VB. ) 

) 

) 

) 

Defendant. ) 

-----------------------------) 

'lbe plaintiff baving re:p!St.ed and being in need of counsel. tc assist 

himlhe.r in this _tter, and a volunteer attcc"ney willing to be appointed to 

re~esent plaintiff having been located by the Federal Pro Bono Project, 

rr IS BDUJ!Y ausuD 'mAT: 

.. 


h 

is 8HX>i.nted as counsel for plaint.1ff in this _tter. 

Attaa-nt -Etc Federal Pro Bono Project Guidelines 

D-10 
APPENDIX E 


CASE MANAGEMENT CHECKLIST 


I. ASSIGNMENT TO PILOT PROGRAM 


A. 	 Assignment to Pilot Program automatic upon assignment, 

at filing, to one of participating judges. 

B. 	 Issuance, upon filing, of Case Management Checklist and 

Case Management Conference Scheduling Order setting 

conference 60 days from filing, to be served by 

plaintiffs with complaint. 

C. 	 Service of complaint must be made within 30 days of 

filing. 

D. 	 Counsel meet and confer to discuss Checklist and prepare 

joint case management proposal, if possible. 

E. 	 Case management proposals due from counsel seven days 

prior to Case Management Conference. 

II. 	 CONTENTS OF CASE MANAGEMENT PROPOSALS 

Case management proposals must include discussion of, and 

suggestions regarding, the following issues: 

10937699 	 -IE-I 
A. 	 Local Rule 235-3 categories (a) through (i); Local 

Rule 235-7 items (d) through (g); (1) through (q); (s), 

( t) • 

B. 	 Discovery: 

1. 	 Document depository. 

2. 	 Mandatory information exchange. 

3. 	 Document identification protocol. 

4. 	 Confidentiality order. 

5. 	 Deposition conduct protocol. 

6. 	 Assignment of discovery disputes to magistrate judge 

or other officer. 

7. 	 Informal resolution of discovery disputes. 

a. 	 letter briefs 

b. 	 telephonic conferences 

c. 	 on-call availability 

8. Discovery period: e.g., ___ days. 

-2­

E-2 

10937699 
9. 	 Discovery cut-off date. 

10. 	 Staged or prioritized discovery (key depositions 

prior to settlement conference date). 

11. 	 Limitations on number of interrogatories: e. g. , 

____ interrogatories. 

12. 	 Prohibition of, or limitation on, contention 

interrogatories. 

13. 	 Limit on number of depositions: e. g. , 

depositions. 

14. 	 Limit on absolute length of each deposition (e.g., 

8 hours) or average length of depositions. 

15. 	 Losing party pays costs of discovery disputes. 

c. 	 Staged resolution or bifurcation of issues. 

1. 	 Stipulation to class certification of case, or of 

particular claims and issues. 

2. 	 Stipulation to amendments to complaint or dismissal 

(without prejudice and with tOlling agreement) of 

certain claims. 

10937699 	 -3­

E-3 
3. Scheduling of summary judgment or partial summary 

adjudication motions. 

4. 	 Test cases or test plaintiffs. 

5. 	 Summary jury trial or mini-trial (binding or 

nonbinding). 

D. 	 Organizational issues. 

1. 	 Designation of lead, liaison, and/or committees of 

counsel for plaintiffs and defendants. 

2. 	 Early cut-offs for joinder of parties and assertion 

of counterclaims and third party claims. 

3. 	 Pretrial and/or trial coordination under Rule 42. 

4. 	 Proposals re specific penalties and sanctions for 

infractions of case management order~ suspension of 

Rule 11 considerations until end of case. 

E. 	 Motions. 

1. Format and page limitations for briefs. 

10937699 -4­

E-4 
a. Limit briefs to __ pages. 

b. 	 Limit motion papers to memoranda, declarations 

and deposition excerpts. 

c . 	 Limit to opening, opposi tion and c losing memos i 

no supplemental memos or letters. No posthearing letters except to submit, without 

editorial comment, new decisions which are 

important. 

d. 	 Highlight relevant portions of depositions 

attached to motions. 

e. 	 In appropriate cases, establish at status 

conference abbreviated schedules for noticing 

and briefing motions. 

f. 	 Require hand or overnight delivery or faxing 

of motion papers where there is a tight 

schedule or out-of-town counsel. 

g. 	 Require courts to rule on motions within a 

limited period of time: e. g. , days 

from submission of closing memos. 

2. 	 Informal letter briefs. 

10931699 	 -5­

E-5 
3. Referral of motions to magistrate judge. 

4. Prioritization and scheduling of Rule 12 and Rule 23 

motions. 

5. 	 Expedited schedules for briefing and hearing of 

motions. 

a. 	 Moving papers filed ____ days before hearing. 

b. 	 Responses filed ____ days before hearing. 

c. 	 Closing memoranda filed ____ days before 

hearing. 

6. 	 Tentative rulings on motions to guide oral argument 

and eliminate unnecessary appearances. 

F. 	 Discovery cut-off, motions cut-off, and pretrial dates. 

G. 	 Requests for continuances of any dates or deadlines must 

have consent of, or notification to, client. 

III. 	TIMING OF REFERRALS 

10937699 -6­

E-6 
A. 	 Alternative dispute resolution and issue focusing 

techniques. 

1. 	 Timing of referral to ENE 

2. 	 Schedule for settlement conferences 

3. 	 Other alternative dispute resolution techniques 

B. 	 Referrals to magistrate judge 

IV. 	 ATTENDANCE AT CASE MANAGEMENT CONFERENCE 

A. 	 Supervising counsel. 

B. 	 Party or parties' representatives. 

C. 	 Insurer or insurer's representatives. 

D. 	 Exchange of all applicable insurance policies prior to 

Case Management Conference. 

V. 	 SCHEDULING OF ADDITIONAL STATUS CONFERENCES AT REGULAR 

INTERVALS 

VI. 	 TRIAL 

A. 	 Pre-Trial Conference I (60 days before trial): Decides 

scope of trial, trial length, delineation of issues, and 

10931699 -7­

E-7 
facts which can be stipulated; and directs additional 

Rule 	56 motions, if necessary, to further limit or 

identify issues for trial. 

B. 	 Pre-Trial Conference II (7 days before trial). Final 

rulings made on motions in limine, outlines of contested 

issues of fact to be determined by trial, outline of all 

evidence offered by both sides; limitations on number of 

witnesses, number of trial hours or trial days allotted 

to each party, and protocol for expert witness testimony. 

C. 	 Use of mini-trials (bench or jury) in lieu of conventional trial if summary judgment outcome leaves only 

limited, specific fact issues for resolution. 

D. 	 Limitation and special procedures for handling expert 

witnesses. (Applies to bench trials and may be 

considered for jury trials.) 

1. 	 Direct examination of experts to be submitted and 

exchanged in narrative form 10 days before Pretrial 

Conference II. 

2. 	 Rulings on objections to expert narrative statements 

made at Pretrial Conference II. 

10931699 	 -8­

E-8 
3. 	 Approved narrative statements constitute the direct 

examination of experts. 

4. 	 Proposed Rule 702 and 45 adopted with respect to 

experts. 

10937699 	 -9­

E-9 

APPENDIX F 


SAMPLE CASE MANAGEMENT ORDER 


IN THE UNITED STATES DISTRICT COURT 


FOR THE NORTHERN DISTRICT OF CALIFORNIA 


IN RE:, 

) 

) 

Civ. No. 

[judge]-[magistrate judge] 

) 

LITIGATION 

) 

) 

) 

THIS DOCUMENT RELATES TO: ) 

) 

ALL CASES 

) 

) 

----------------------------------) 


CASE MAHAGEHEN'l' ORDER HO. 1 

Having considered the written Case Management proposals 

and the comments and suggestions of the parties presented at 

the Case Management Conference held , 199_, the 

Court ORDERS: 

1. Pretrial Consolidation. The cases listed on 

Attachment A are, until further order, consolidated for 

pretrial purposes. This Order does not constitute a 

determination that these actions should be consolidated for 

trial, nor does it have the effect of making any entity a 

party to an action in which it has not been joined and 

served in accordance with the Federal Rules of Civil 

Procedure. 

a. Master Docket and Pile. The Clerk will maintain a 

master docket and case file under the style "In re 

Litigation," Master File ~N~umb-.-e-r~C~.~A-.~N~o-.~H~-~9~O~-~O~2~1~4~.--A~11 orders, pleadings, motions, 

and other documents will, when filed and docketed in the 

master case file, be deemed filed and docketed in each 

individual case to the extent applicable. 

b. Captions; Separate Piling. Orders, pleadings, 

motions and other documents will bear a caption similar to 

that of this Order. If generally applicable to all consolidated actions, they shall include in their caption the 

notation that they relate to "ALL CASES" and be filed and 

docketed only in the master file. Documents intended to 

-1­ 10938920 

F-l 
apply only to particular cases will indicate in their 

caption the case number of the case(s) to which they apply, 

and extra copies shall be provided to the Clerk to 

facilitate filing and docketing both in the master file and 

the specified individual case files. 

c. Discovery Requests and Responses. Pursuant to 

Fed.R.Civ.P. 5(d), discovery requests and responses will not 

be filed with the Court except to the extent offered in 

connection with a motion under Rule 11, 12, or 56 or a 

motion seeking a ruling by the Court on a discovery dispute. 

2. Referrals. The following matters are referrals to 

Hon. __________, the assigned Magistrate Judge: 

a. Discovery [specify]. 

b. Nondispositive motions. 

c. Other. Upon the consent and stipulation of all 

parties: [specify]. 

3. Organization of Plaintiffs' Counsel. 

a. Plaintiffs. To act on behalf of plaintiffs the 

court designates-­

(1) as Lead Counsel: 

(2) as an additional member of an Executive Committee 

to act together with Class Co-Lead Counsel with respect to 

issues common to the class and individual actions: 

b. Defendants, to act on behalf of defendants the 

court designates -­

c. Time Records. Counsel who anticipate seeking an 

award of attorneys' fees from the Court shall maintain 

contemporaneous records reflecting the services performed 

and expenses incurred, to be submitted to the Court upon 

request. Unless otherwise ordered, compensation to 

plaintiffs' counsel shall be calculated upon a reasonable 

percentage of recovery basis under the guidelines set forth 

in Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 

(9th Cir. 1989) and In re Activision Securities Litigation, 

723 F. Supp. 1373 (N.D. Cal. 1989). [Note: This provision, 

together with all of the other provisions of this sample 

order, is included only to provide an example. Thus, this 

particular provision may have no application to other kinds 

of lawsuits, e.g. civil rights cases. See, City of 

Riverside v. Rivera, 477 U.S. 561 (1986).] 

4. Service of Documents. All counsel of record in 

any of the cases listed on Attachment A shall be served with 

10938920 -2­

F-2 
a copy of each pleading, motion, or other document filed by 

a party, and with a copy of each order entered by the Court. 

5. Refinement of Issues. 

a. Consolidated Complaint. The plaintiffs shall file 

a single consolidated amended complaint which shall replace 

the underlying complaint in each of the three class actions 

listed on Attachment A by 

b. Responsive Pleadings and Rule 12 Motions. Each 

defendant shall have until to serve and 

file an answer to the plaintiffs consolidated amended 

complaint, and, if they desire, to serve and file, together 

with all other defendants desiring to do so, a joint motion 

to dismiss (with all supporting papers and briefs) addressed 

to the plaintiffs' consolidated amended complaint. The 

plaintiffs shall have until to serve and file a 

joint opposition brief (with all supporting papers). The 

moving defendants shall have until to serve and 

file a joint reply brief (with all supporting papers) 

limited to discussions of points raised in plaintiffs' joint 

opposition brief, which were not fully covered in the 

defendants' joint opening brief and supporting papers. 

c. Class Action. The plaintiffs will file by __~~~, their motion seeking class certification, 

identifying the class(es) for which certification is sought, 

detailing the facts on which satisfaction of the 

requirements of Fed.R.Civ.P. 23 is asserted, and describing 

what and how notice will be given to class members. 

Defendants will file by , any objections to-class 

certification, specifying with particularity the factual and 

legal basis of their objection and identifying any facts on 

which an evidentiary dispute exists. The plaintiffs will 

file by , any reply to Defendants' objections. A 

hearing will thereafter be conducted by the Court under Rule 

23(c), at which time the parties may present extracts of 

depositions, interrogatories, and documentary evidence 

relevant to any factual disputes. Only on a showing of good 

cause will a party be permitted to call a witness to testify 

in person at the hearing. 

d. Summary Judgment. [The calendaring of any Summary 

Judgment motion shall be done at the First Status Conference 

held after the determination of class certification issues] 

Each defendant shall have until [or

days], to serve and file, together with all other defendants 

desiring to do so, a joint motion for summary judgment (with 

all supporting papers and briefs) addressed to the 

plaintiffs' consolidated amended complaint and the 

complaint(s) in the individual action(s). The plaintiffs 

shall have until [or days], to serve 

and file a joint opposition brief (with all supporting 

papers). The moving defendants shall have until [or 

10938920 -3­

F-3 

days] to serve and file a joint reply brief (with 

all supporting papers) limited to discussions of points 

raised in plaintiffs' joint opposition brief, which were not 

fully covered in defendants' joint opening brief and 

supporting papers. 

6. Motions Practice. Unless otherwise ordered in 

exceptional circumstances, briefs and memoranda shall be 

limited to pages. Motion papers shall be limited 

to memoranda, declarations or affidavits, and deposition 

excerpts. Exhibits limited to a total of pages 

per party may be submitted in connection with a motion 

requiring review of evidentiary material. Unless otherwise 

ordered, motions shall be briefed and heard on a 

day schedule. Moving papers: days before 

hearing; opposition: days before hearing~ reply: 

days before hearing. No other submission will be 

considered. 

7 . Discovery• 

a. Schedule. Discovery shall be conducted according 

to the schedule set forth on Attachment B. All discovery on 

the issue of class certification shall be completed by 

b. General Limitations. All discovery requests and 

responses are subject to the requirements of Fed.R.Civ.P. 

26(b)(1) and (g). Discovery shall not, without prior 

approval of the Court, be taken of, require or include 

Any request for approval of such otherwise 

prohibited discovery shall indicate why the discovery is 

needed and the specific information or documents sought. 

c. Confidentiality Order. See Attachment C. 

d. Documents. 

(1) Preservation. See Attachment C. 

(2) Numbering System. Counsel shall develop and use a 

system for identifying by a unique number or symbol each 

document produced or referred to during the course of this 

litigation. All copies of the same document should 

ordinarily be assigned the same identification number. 

(3) Document Depositories. See Attachment D. 

(4) Avoidance of Multiple Requests. Counsel shall, to 

the extent possible, coordinate and consolidate their 

requests for production and examination of documents to 

eliminate duplicative requests from the same party. 

e. Interrogatories. Counsel shall, to the extent 

pOSSible, combine their interrogatories to any party into a 

10938920 -4­

F-4 
single set of questions. No question shall be asked that 

has already been answered in response to interrogatories filed by another party unless there is reason to believe 

that a different answer will be given. Each party is 

limited to interrogatories. No contention type 

interrogatories may be propounded without prior court order 

upon a showing of good cause. 

f. Depositions. See Attachment E. 

g. Experts. All parties shall exchange lists of 

expert witnesses expected to be called by them not later 

than No party shall, in the absence of good 

cause shown, be permitted to call as an expert witness at 

trial any person not appearing on such party's expert witness list. 

h. Special Agreements. All parties shall be under a 

continuing duty to make prompt disclosure to the court (and, 

unless excused by the court for good cause shown, to other 

parties) of the existence and terms of all agreements and 

understandings, formal or informal, absolute or conditional, 

setting or limiting their rights or liabilities in this 

litigation. This obligation includes not only settlements, 

but also such matters as "loan receipt" and "Mary Carter" 

arrangements, and insurance, indemnification, contribution, 

and damage-sharing agreements. 

i. Discovery Previously Taken. Discovery conducted 

prior to consolidation in any of the actions listed on 

Attachment A shall be deemed to have been taken in all of 

the consolidated actions. 

j. Early Mutual Disclosure. Within 30 days of the 

date of this Order, all parties shall disclose to each 

other: 

(1) the identification of all persons reasonably 

likely to have information that bears significantly on any 

of the claims and defenses in this litigation, including 

damages; 

(2) a general description of documents and other 

matters within a party's posseSSion, custody or control that 

are reasonably likely to bear significantly on the claims 

and defenses; 

(3) computation of damages claimed; and 

(4) the existence and contents of liability insurance 

policies. 

8. Trial. 	 Subject to further order of the Court, the 

parties 	are directed to be ready for trial on all issues by 

Counsel are cautioned that the Court may 

10938920 	 -5­

F-S 
require a listing in advance of trial of the factual 

contentions each party expects to prove at the trial, 

identifying the witnesses and documents to be presented in 

support of each such contention, and may preclude the 

presentation of any contention, witness, or document not so 

identified. 

9 . Next Conference. The next pretrial conference is 

scheduled for Thereafter, conferences 

shall be scheduled at month intervals. 

10. Later Filed Cases. The terms of th-is Order, 

including pretrial consolidation, shall apply automatically 

to actions later instituted in, removed to, or transferred 

to this Court (including cases transferred for pretrial 

purposes under 28 U.S.C. § 1407) that involve related 

claims. Objections to such consolidation or other terms of 

this Order shall promptly be filed, with a copy served on 

counsel for plaintiffs and defendants. 

DATED: _________________, 199_"

United States District Judge 

10938920 -6­

F-6 

[PROPOSED] 


Attachment A 


TO CASE HANAGEHENT ORDER NO. 1 


LIST OF CASES CONSOLIDATED 

-1­ 10938920 


F-7 

[PROPOSED)


Attachment B 


TO CASE MANAGEMENT ORDER NO. 1 


DISCOVERY SCHEDULING ORDER 


IT IS ORDERED: 

1. Discovery shall be conducted according to the 

following schedule: 

a. Document discovery by all parties shall resume 

immediately. Deposition discovery shall commence on 

1991, and all discovery (document and deposition) shall thereafter proceed according to the following schedule: 

Discovery 

Initiated By Duration 

Plaintiffs through 

Defendants through 

Plaintiffs through 

Defendants through 

Plaintiffs through 

Defendants through 

b. Experts. Document and deposition discovery of 

expert witnesses for all parties shall commence on _____, 1991, and continue through , 1991 .. 

2. Except for good cause shown, 

a. relief from the above schedule shall not be 

granted, and all non-expert discovery shall be completed by _____, and all discovery shall be completed by 

-----; 

b. non-expert discovery shall be limited to matters 

occurring after , and before ; 

10938920 -1­

F-8 
c. no more than 30 interrogatories (including 

subparts) may be propounded to any party (exclusive of 

interrogatories seeking the identity and location of 

witnesses and documents) and interrogatories shall be 

limited to the identification of persons with relevant 

information, insurance information and other informational 

requests that can most easily be obtained through 

interrogatories. 

3. The parties are expected to be prepared for trial 

on all issues by , 199 . 

__________________ , 199_. DATED: 

United States District Judge 

10938920 -2­

F-9 
[PROPOSED] 


Attachment C 


TO CASE HANAGEMENT ORDER NO. 1 


CONFIDENTIALITY AND RECORDS PRESERVATION ORDER 

IT IS ORDERED: 

The Securities Litigation may involve the 

production of voluminous documents. Some of the documents 

and other discovery materials of each of the parties are 

confidential or privileged within the meaning of Rule 26 of 

the Federal Rules of Civil Procedure. 

1. Confidential Documents Defined. 

a. Confidential documents (hereafter the 

"Confidential Documents" or "Confidential Information") 

means those documents that are (i) identified by a party as 

responsive to a request for production of documents 

propounded by any other party and (ii) that are designated 

in accordance with! 3 below as Confidential Documents. 

b. As to those documents that are produced for 

examination for the purpose of allowing counsel to determine 

which of those documents he desires copied, those documents 

shall be subject to this Protective Order, whether or not 

designated, until copies of the documents are requested and 

supplied, and thereafter only if the copies supplied are 

designated as provided in ! 3 or otherwise designated as 

Confidential. 

2. Contents of Confidential Documents. 

a. Confidential Documents contain trade secrets, 

proprietary information, and other information that is 

confidential to the producing party or other party who 

designates documents pursuant to f 3 ("designating party"). 

b. contends that disclosure of 

Confidential Documents or Information to the competitors of 

a producing party could impair the producing party's ability 

to compete. Further, contends that disclosure of 

sensitive investor information could subject or 

other defendants to liability from investors. Good cause, 

therefore, exists to enter this Protective Order, which 

shall govern the disclosure and use of documents designated 

as "Confidential. II 

3. Designation. 

a. Confidential Documents shall be so designated with 

a legend: "CONFIDENTIAL - SUBJECT TO PROTECTION PURSUANT TO 

-1­ 10938920 

F-10 
COURT ORDER," along with an identification of the designat­ ing party, to signify that it contains information believed 

to be subject to protection. Designation shall be made no 

later than ten days after the documents identified by the 

requesting party have been copies and Bates labeled. After 

a document is designated as confidential, the original copy 

and all subsequent copies shall be so marked. For purposes 

of this Protective Order, the term "document" means all 

written, recorded, or graphic material. Interrogatory 

answers, responses to requests for admission, deposition 

transcripts and exhibits, pleadings, motions, affidavits, 

and briefs that quote, summarize or contain materials 

entitled to protection may be accorded status as a 

Confidential Document. However, to the extent feasible, 

such materials shall be prepared in a manner that the 

Confidential Information is bound separately from that not 

entitled to protection. 

b. The parties may designate confidential only those 

documents that they in good faith believe are entitled to 

protection. A party may object to the designation of a 

document as "Confidential" and apply to the court for a 

ruling that the document should not be so treated. Until 

the court enters an order changing the designation, the 

document and the information contained therein shall be 

protected in accordance with this Protective Order. 

4. 	 Non-Disclosure of Confidential Documents. 

Except with the prior written consent of the producing 

party or other person originally designating a document as a 

Confidential Document, or as hereinafter provided under this 

Protective Order, no Confidential Document may be disclosed 

to any person or entity. 

5. 	 Permissible Disclosures and Maintenance of 

Confidential Documents. 

Notwithstanding! 4 above, Confidential Documents may 

be disclosed only to the following Qualified persons: 

a. 	 Plaintiffs in the Litigation; 

b. 	 Defendants in the Litigation; 

c. Counsel for the parties in the Litigation and 

their regular employees (secretarial, paralegal, clerical, 

and those regularly involved solely in one or more aspects 

of organizing, filing, coding, converting, storing, or 

retrieving data or designing programs for handling data 

connected with these actions); 

d. Employees of third-party contractors performing 

one or more of the functions described in paragraph 5(c); 

10938920 	 -2­

F-ll 
e. Present or former employees or directors of any 

party to the Litigation or other persons with prior actual 

knowledge of the documents or the Confidential Information 

contained therein, and their counsel; 

f. Court personnel involved in this litigation (including court reporters and persons operating video 

recording equipment at depositions); 

g. Consultants or experts, and their employees and 

subcontractors, retained solely for the purpose of assisting counsel in the Litigation; and 

h. Any person designated by the Court in the interest 

of justice, upon such terms as the Court may deem proper. 

Qualified Persons shall be required to keep Confidential Documents or Information separate and 

inaccessible to all persons other than those identified in 

this paragraph 5. 

6. Procedure for Permissible Disclosures. 

a. Each individual to whom disclosure is made 

pursuant to §§ Sea), (d), (e), (g) or (h) above shall, prior 

to disclosure, sign an acknowledgement form, a sample of 

which is attached hereto as Exhibit "A," containing: 

(1) a recital that the signatory has read, 

understands, and agrees to be bound by this Protective 

Order; 

(2) a recital that the signatory understands that 

unauthorized disclosures of the Confidential Documents 

constitute contempt of Court; and 

(3) a statement that the signatory consents to the 

exercise of personal jurisdiction of the transferee forum, 

the United States District Court for the 

A copy of the acknowledgement shall be retained by the party 

obtaining execution. If any Qualified Person refuses to 

sign an acknowledgement form, a party may apply to the Court 

for permission to show that person Confidential Documents, 

notwithstanding the provisions of paragraph 6 of this 

Protective Order. A Qualified Person who is deposed may be 

shown Confidential Documents at his deposition, whether or 

not he has signed an aCknowledgement form. 

b. Before disclosing a Confidential Document to any 

person who is a competitor (or an employee of a competitor) 

of a party that so deSignated the document, the party 

wishing to make such disclosure shall give at least ten 

days' advance written notice to the counsel who designated 

10938920 -3­

F-12 
such information as Confidential, stating the names, 

addresses, and business activity of the person(s) to whom 

the disclosure will be made, identifying with particularity 

the documents to be disclosed, and stating the purposes of 

such disclosure. If, within the ten-day period, a motion is 

filed by any party objecting to the proposed disclosure, 

disclosure is not permissible until the Court has denied 

such a motion. The Court will deny the motion unless the 

objecting party shows good cause why the proposed disclosure 

should not be permitted. 

7. Declassification. 

A party (or aggrieved entity permitted by the Court to 

intervene for such purpose) may apply to the Court for a 

ruling that a document (or category of documents) designated 

as confidential is not entitled to such status and 

protection or for an order permitting disclosure beyond the 

terms of this Protective Order. The party or other person 

that designated the document as confidential shall be given

notice of the application and an opportunity to respond. 

The proponent of confidentiality has the burden of proof in 

demonstrating that there is good cause for the documents to 

have such status. 

8. Confidential Information in Depositions. 

a. Qualified Persons who are deposed shall not retain 

or copy portions of the transcript of their depositions that 

contain Confidential Information unless they sign the 

acknowledgement prescribed in paragraph 6. 

b. Parties may, within 20 days after rece1v1ng a 

deposition, designate pages of the transcript (and exhibits 

thereto) as confidential. Confidential Information within 

the deposition transcript may be designated by underlining 

the portions of the pages that are confidential and marking' 

such pages with the following legend: "CONFIDENTIALSUBJECT TO PROTECTION PURSUANT TO COURT ORDER." Until 

expiration of the 20-day period, the entire deposition will 

be treated as subject to protection against disclosure under 

this Protective Order. If no party timely designates 

Confidential Information in a deposition, then none of the 

transcript or its exhibits will be treated as confidential; 

if a timely designation is made; the confidential portions 

and exhibits shall, unless prohibited by the Court, be filed 

under seal apart from the portions and exhibits not so 

marked. 

9. Subpoena by Other Courts or Agencies. 

If another court or an administrative agency subpoenas 

or orders production of Confidential Documents that a party 

has obtained under the terms of this Protective Order, such 

party shall promptly notify the party or other person who 

10938920 -4­

F-13 
designated the document as confidential of the pendency of 

such subpoena or order. 

10. Filing. 

Confidential Documents need not be filed with the Court 

except when required by the Court. If filed, they shall be 

filed under seal, unless prohibited by the Court, and shall 

remain sealed while in Court so long as they retain their 

status as Confidential Documents. 

11. Client Consultation. 

Nothing in this Protective Order shall prevent or 

otherwise restrict counsel from rendering advice to their 

clients and, in the course thereof, relying generally on 

examination of Confidential Documents; provided, however, 

that on rendering such advice and otherwise communicating 

with such client, counsel shall not make any specific 

disclosure of any item so designated except pursuant to the 

procedures of paragraphs 5 and 6, as applicable. 

12. Use. 

Persons obtaining access to Confidential Documents 

under this Protective Order shall use the documents and 

information only for preparation and trial of the Litigation 

(including appeals and retrials). 

13. Scope of Protective Order. 

This Protective Order shall govern all documents and 

other discovery materials produced in response to any method 

of discovery employed by any party in the Litigation. 

14. Non-Termination. 

The provisions of this Protective Order shall not 

terminate at the conclusion of the Litigation. At the 

conclusion of this Litigation, Confidential Documents and 

all copies thereof (other than exhibits of record) shall, at 

the request of the producing party, be re-tendered to the 

producing party, person, or entity, or destroyed. 

15. Preservation of Documents. 

During the pendency of this Litigation, and for 120 

days after the final order closing all cases, each of the 

parties herein and their respective officers, employees, 

agents, and all persons in active concert or participation 

with them are restrained and enjoined from altering, 

interlining, destroying, permitting the destruction of, or 

otherwise changing [scope of document retention order] in 

the actual or constructive care, custody or control of such 

person, wherever such document is physically located; or 

10938920 -5­

F-14 
from irrevocably changing the manner and sequence of the 

files in which the documents were originally compiled or 

kept. 

16. Modification Permitted. 

Nothing in this Protective Order shall prevent any 

party or other person, for good cause shown, from seeking modification of this Protective Order or from objecting to 

discovery that it believes to be otherwise improper. 

17. Non-Exclusive Order. 

Nothing in this Protective Order shall prevent the 

parties from entering into other confidentiality agreements 

or obtaining other protective orders by stipulation or 

otherwise. Nothing in this Protective Order shall preclude 

any party from seeking additional protection with respect to 

the Confidential Documents and Information. 

18. Responsibility of Attorneys. 

The attorneys of record are responsible for providing a 

copy of this protective Order to all persons entitled by 

paragraph 5 to Confidential Documents, and for employing 

reasonable measures, including those set forth in 

paragraph 6, to control, consistent with this protective 

Order, duplication of, access to, and distribution of copies 

of Confidential Documents. No one shall duplicate any 

Confidential Document except for the creation of working 

copies, exhibits to depositions, and, as necessary, a copy 

to be filed in Court under seal. 

19. No Waiver. 

a. Review of the Confidential Documents and 

Information by counsel, experts or consultants for the 

litigants in the Litigation shall not waive the 

confidentiality of the documents or objections to 

production. 

b. The inadvertent, unintentional, or in camera 

disclosure of Confidential Documents and Information shall 

not, under any circumstances, be deemed a waiver, in whole 

or in part, of any party's claims of confidentiality. 

20. Nothing contained in this Protective Order and no 

action taken pursuant to it, shall prejudice the right of 

any party to contest the alleged relevancy, admissibility' 

10938920 -6­

F-15 

--------

or discoverability of the Confidential Documents and 

Information sought. 

DATED: , 199 


United States District Judge 

-7­ 10938920 


F-16 

EXHIBIT A 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

IN RE: Civil No. 

LITIGATION 

ACKNOWLEDGEMENT OF PROTECTIVE ORDER 


AND AGREEMENT TO BE BOUND 


states as follows: 

1. That he resides at in the City and 

County of and State of ----------, 

2. That he has read and understands the Protective 

Order dated , 199_ entered in the 

Litigation. 

3. That he is either (a) engaged as a consultant or 

expert or (b) has been interviewed by on behalf 

of in the preparation and conduct of one or more 

of the cases consolidated under the Transfer Order in In re 

Litigation. 

4. That he agrees to comply with and be bound by the 

provisions of the Protective Order. 

5. That counsel who has retained or consulted with 

him has explained to him the terms thereof. 

6. That he will not divulge to persons other than 

those specifically authorized by paragraph 5 of the 

Protective Order, and will not copy or use, except solely 

for the purposes of the Litigation, any Confidential 

Document or Information as defined by the Protective Order, 

except as provided therein. 

(name of individual to whom 

disclosure will be made) 

-1­ 10938920 

F-17 
[PROPOSED]


Attachment D 


TO CASE MANAGEHENT ORDER HO. 1 


ORDER FOR ESTABLISHMENT OF DOCUMENT DEPOSITORIES 

IT IS ORDERED: 

1. Establishment of Depositories. Document 

depositories shall be established in [city], 

[state] at such locations as the parties may 

agree upon. In the absence of agreement, the Court upon 

motion shall designate such locations. Documents produced 

by plaintiffs pursuant to formal or informal request shall 

be placed in a plaintiffs' depository maintained at the 

expense of plaintiffs; those produced by defendants pursuant 

to formal or informal request shall be placed in a 

defendants' depository maintained at the expense of 

defendants. Each depository will contain (or have 

available) a copying machine with an appropriate mechanism 

for separately counting the copies that are made by each 

party. 

2. Filing System. The filing party shall place the 

documents in the depository in sequential order according to 

the document numbers, and the documents shall be organized 

in groups in accordance with the document identification 

prefixes. Documents without identification numbers shall be 

organized in an orderly and logical fashion. Existing 

English translations of all foreign-language documents shall 

be filed with the documents. 

3. Access; Copying; Log. Counsel appearing for any 

party in this litigation and the staffs of their respective 

law firms working on these cases shall have reasonable 

access during business hours to each party's documents in 

any such depository and may copy or obtain copies at the 

inspecting parties' expense. A log will be kept of all 

persons who enter and leave the depository, and only 

duplicate copies of documents may be removed from the 

depository except by leave of Court. Access to, and copying 

of, confidential documents is subject to the limitations and 

requirements of the order protecting against unauthorized 

disclosure of such documents. 

4. Subsequent Filings. After the initial deposit of 

documents in the depository, notice shall be given to all 

counsel of all subsequent deposits. 

___________________, 199__ DATED: 

United States District Judge 

-1­ 10938920 

F-18 

[PROPOSED]


Attachment E 


TO CASE HAHAGEHENT ORDER NO. 1 


DEPOSITION GUIDELINES 


IT IS ORDERED that depositions be conducted in 

accordance with the following rules: 

1. Cooperation. Counsel are expected to cooperate 

with, and be courteous to, each other and deponents. 

2. Stipulations. Unless contrary to an order of the 

Court, the parties (and, when appropriate, a non-party 

witness) may stipulate in any suitable writing to alter, 

amend, or mOdify any practice relating to noticing, 

conducting, or filing a deposition. Stipulations for the 

extension of discovery cut-offs set by the Court are not, 

however, valid until approved by the Court. 

3. Scheduling. Absent extraordinary circumstances, 

counsel shall consult in advance with opposing counsel and 

proposed deponents in an effort to schedule depositions at 

mutually convenient times and places. That some counsel may 

be unavailable shall not, however, in view of the number of 

attorneys involved in this litigation, be grounds for 

postponing a deposition if another attorney from the same 

firm or who represents a party with similar interests is 

able to attend. 

4. Attendance. Unless otherwise ordered under 

Fed.R.Civ.P. 26(c), depositions may be attended by counsel 

of record, members and employees of their firms, attorneys specially engaged by a party for purpose of the deposition, 

the parties or the representative of a party, counsel for 

the deponent, and potential witnesses. While a deponent is 

being examined about any designated confidential document or 

the confidential information contained therein, persons to 

whom disclosure is not authorized under the Confidentiality 

Order shall be excluded. 

5. Conduct. 

a. Examination. Each side should ordinarily designate one attorney to conduct the principal examination 

of the deponent, and examination by other attorneys should 

be limited to matters not previously covered. Counsel for 

each side shall cooperate with each other in the 

apportionment of time, such that the time limits set in this 

Court's orders with respect to length of individual 

depositions will be complied with. 

b. Objections. The only objections that should be 

raised at the deposition are those involved in a privilege 

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against disclosure or some matter that may be remedied if 

presented at the time, such as to the form of the question 

or the responsiveness of the answer, or objections to the 

scope of discovery based upon orders of this Court. 

Objections on other grounds are unnecessary and should 

generally be avoided. All objections should be concise and 

must not suggest answers to (or otherwise coach) the 

deponent. Argumentative interruptions will not be 

permitted. 

c. Directions Not to Answer. Directions to the 

deponent not to answer are improper except on the ground of 

privilege, violation of an order of this Court governing the 

permissible scope of discovery, or to enable a party or 

deponent to present a motion to the Court for termination of 

the deposition on the ground that it is being conducted in 

bad faith or in such a manner as unreasonably to annoy, 

embarrass, or oppress the party or the deponent. When a 

privilege is claimed, the witness should nevertheless answer 

questions relevant to the existence, extent, or waiver of 

the privilege, such as the date of a communication, who made 

the statement, to whom and in whose presence the statement 

was made, other' persons to whom the contents of the 

statement have been disclosed, and the general subject 

matter of the statement. 

d. Private Consultation. Private conferences between 

deponents and their attorneys during the actual taking of 

the deposition are improper except for the purpose of 

determining whether a privilege should be asserted. Unless 

prohibited by the Court for good cause shown, such 

conferences may, however, be held during normal recesses and 

adjournments. 

6. Documents. 

a. Production of Documents. Witnesses subpoenaed to 

produce numerous documents should ordinarily be served at 

least 30 days before the scheduled deposition. Depending 

upon the quantity of documents to be produced, some time may 

be needed for inspection of the documents before the 

interrogation commences. 

b. Confidentiality Order. A copy of the 

Confidentiality Order shall be provided to the deponent 

before the deposition commences if the deponent is to 

produce or may be asked about documents which may contain 

confidential information. 

c. Copies. Extra copies of documents about which 

counsel expect to examine the deponent should ordinarily be 

provided to opposing counsel and the deponent. Deponents 

should be shown a document before being examined about it 

except when counsel seek to impeach or test the deponent's 

recollection. 

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7. Depositions of Witnesses Who Have No Knowledge of 

the Facts. An officer, director, or managing agent of a 

corporation or governmental official served with a notice of 

a deposition or subpoena regarding a matter about which such 

person has no knowledge may submit to the noticing party a 

reasonable time before the date noticed an affidavit so 

stating and identifying a person within the corporation or 

government entity believed to have such knowledge. 

Notwithstanding such affidavit, the noticing party may 

proceed with the deposition, subject to the right of the 

witness to seek a protective order. 

8. Expert Witnesses. Leave is granted to depose 

expert witnesses in addition to or in lieu of discovery 

through interrogatories. Objection to such depositions may 

be made by motion. 

9. Tape Recorded Depositions. By indicating in its 

notice of a deposition that it wishes to record the 

deposition by tape recording in lieu of stenographic 

recording (and identifying the person before whom the 

deposition will be taken), a party shall be deemed to have 

moved for such an order under Fed.R.Civ.p. 30(b)(4). Unless 

an objection is filed and served within 15 days after such 

notice is received, the Court shall'be deemed to have 

granted the motion pursuant to the following terms and 

conditions: 

a. Transcript: Filing. Subject to the provisions of 

paragraph 12, the party noticing the deposition shall be 

responsible for preparing a transcript of the tape recording 

and for filing within applicable time limits this transcript 

together with the original tape. 

b. Rights of Other Parties. Other parties may at 

their own expense arrange for a stenographic recording of 

the deposition, may obtain a copy of the tape and transcript 

upon payment of a pro-rata share of the noticing party's 

actual costs, and may prepare and file their own version of 

the transcript of the tape recording. 

10. Videotaped Depositions. By indicating in its 

notice of a deposition that it wishes to record the 

deposition by videotape (and identifying the proposed 

videotape operator), a party shall be deemed to have moved 

for such an order under Fed.R.Civ.P. 30(b)(4). Unless an 

objection is filed and served within 15 days after such 

notice is received, the Court shall be deemed to have 

granted the motion pursuant to the following terms and 

conditions: 

a. Stenographic Recording. The videotaped deposition 

shall be simultaneously recorded stenographically by a 

qualified court reporter. The court reporter shall on 

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camera administer oath or affirmation to the deponents. The 

written transcript by the court reporter shall constitute 

the official record of the transcription for purposes of 

Fed.R.Civ.P. 30(e) (submission to witness) and 30(f) (filing exhibits). 

b. Cost. The noticing party shall bear the expense of both the videotaping and the stenographic recording. Any 

party may at its own expense obtain a copy of the videotape and the stenographic transcript. Requests for taxation of 

these costs and expenses may be made at the conclusion of 

the litigation in accordance with applicable law. 

c. Video Operator. The operator(s) of the videotape 

recording equipment shall be subject to the provisions of 

Fed.R.Civ.P. 28(c). At the commencement of the deposition, 

the operator(s) shall swear or affirm to record the 

proceedings fairly and accurately. 

d. Attendance. Each witness, attorney, and other 

person attending the deposition shall be identified on 

camera at the commencement of the deposition. Thereafter, 

only the deponent (and demonstrative materials used during the deposition) will be videotaped. 

e. Standards. The depositions will be conducted in a 

manner to replicate, to the extent feasible, the 

presentation of evidence at a trial. Unless physically 

incapacitated, the deponent shall be seated at a table or in 

a witness box except when reviewing or presenting 

demonstrative materials for which a change in position is 

needed. To the extent practicable, the deposition will be 

conducted in a neutral setting, against a solid background, 

with only such lighting as is required for accurate video 

recording. Lighting, camera angle, lens setting, and field 

of view will be changed only as necessary to record 

accurately the natural body movements of the deponent or to 

portray exhibits and materials used during the deposition. Sound levels will be altered only as necessary to record 

satisfactorily the voices of counsel and the deponent. 

Eating and smoking by deponents or counsel during the 

deposition will not be permitted. 

f. Interruptions. Videotape recording will be 

suspended during all "off the record" discussions. 

g. Examination; Exhibits; Re-reading. The provisions 

of paragraphs 5 and 6 of this Order apply to videotaped 

depositions. Re-reading of questions or answers, when 

needed, will be done on camera by the stenographic court 

reporter. 

h. Index. The videotape operator shall use a counter 

on the recording equipment and after completion of the 

deposition shall prepare a log, cross-referenced to counter 

10938920 -4­

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numbers, that identifies the positions of the tape at which 

examination by different counsel begins and ends, at which 

objections are made and examination resumes, at which 

exhibits are identified, and at which any interruption of 

continuous tape recording occurs, whether for recesses, "off 

the record" discussions, mechanical failure, or otherwise. 

i. Filing. The operator shall preserve custody of 

the original videotape in its original condition until 

further order of the Court. No part of a videotaped 

deposition shall be released or made available to any member 

of the public unless authorized by the Court. 

j. Objections. Requests for pretrial rulings on the 

admissibility of evidence obtained during a videotaped 

deposition shall be accompanied by appropriate pages of the 

written transcript. If the objection involves matters 

peculiar to the videotaping, a copy of the videotape and 

equipment for viewing the tape shall also be provided to the 

Court. 

k. Use at Trial; Purged Tapes. A party desiring to 

offer a videotape deposition at trial shall be responsible 

for having available appropriate playback equipment and a 

trained operator. After the designation by all parties of 

the portions of a videotape to be used at trial, an edited 

copy of the tape, purged of unnecessary portions (and any 

portions to which objections have been sustained), may be 

prepared by the offering party to facilitate continuous 

playback; but a copy of the edited tape shall be made 

available to other parties at least 30 days before it is 

used, and the unedited original of the tape shall also be 

available at the trial. 

11. Telephonic Depositions. By indicating in its 

notice of a deposition that it wishes to conduct the 

deposition by telephone, a party shall be deemed to have 

moved for such an order under Fed.R.Civ.P. 30(b)(7). Unless 

an objection is filed and served within 15 days after such 

notice is received, the Court shall be deemed to have 

granted the motion. Other parties may examine the deponent 

telephonically or in person. However, all persons present with the deponent shall be identified in the deposition and 

shall not by word, sign, or otherwise coach or suggest 

answers to the deponent. 

12. Waiver of Transcription and Filing. The parties 

and deponents are authorized and encouraged to waive 

transcription and filing of depositions that prove to be of 

little or no usefulness in the litigation or to agree to 

defer transcription and filing until the need for using the 

deposition arises. 

13. Use. Depositions may, under the conditions 

prescribed in Fed.R.eiv.P. 32(a)(1)-(4) or as otherwise 

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permitted by the Federal Rules of Evidence, be used against 

any party (including parties later added and parties in 

cases subsequently filed in, removed to, or transferred to 

this Court as part of this litigation)-­

a. who was present or represented at the 

deposition, 

b. who, within 30 days after the filing of the 

deposition (or, if later, within 60 days after becoming a 

party in this Court in any action which is a part of this 

litigation), fails to show just cause why such deposition 

should not be usable against such party. 

14. Rulings. 

a. Immediate Presentation. Disputes arising during 

depositions that cannot be resolved by agreement and that, 

if not immediately resolved, will significantly disrupt the 

discovery schedule or require a rescheduling of the 

deposition may be presented by telephone to the Court. If 

the judge is not available during the period while the 

deposition is being conducted, the dispute may be addressed 

to a Magistrate Judge of this Court. The presentation of 

the issue and the Court's ruling will be recorded as part of 

the deposition. 

b. Extraterritorial Jurisdiction. The undersigned 

will exercise by telephone the authority granted under 

28 U.S.C. § 1407(b) to act as district judge in the district 

in which the deposition is taken. 

DATED: , 199__ 

United States District Judge 

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