1 JUDICIAL CONFERENCE OF THE UNITED STATES

 2 ADVISORY COMMITTEE ON CIVIL RULES

 3

HEARING ON EVIDENCE ) 

 4 ____________________________)

 5

 6 ---oOo---

 7 REPORTER'S TRANSCRIPT OF PROCEEDINGS

HELD ON: MONDAY, FEBRUARY 2, 2009

 8

 ---oOo---

 9

 10

JAMES R. BROWNING COURTHOUSE 

 11 95 7TH STREET

 SAN FRANCISCO, CALIFORNIA

 12

 13 ---oOo---

 14 ADVISORY COMMITTEE:

 15

Hon. Mark R. Kravitz, Chair

 16 United States District Court

New Haven, CT 06510

 17

Professor Edward H. Cooper 

 18 University of Michigan Law School

Ann Arbor, MI

 19

Hon. Lee H. Rosenthal

 20 United States District Judge

Houston, TX

 21

 22 (APPEARANCES CONTINUED ON THE NEXT PAGE)

 23

Court Reporter: PETER TORREANO, CSR 

 24 License Number C-7623

 25

TORREANO SHORTHAND REPORTING (408) 379-0900

1
 1 ADVISORY COMMITTEE:

 2 Professor Richard L. Marcus

University of California

 3 Hastings College of the Law

San Francisco, CA

 4

Theodore C. Hirt

 5 United States Department of Justice

Washington, D.C.

 6

Hon. C. Christopher Hagy

 7 United States District Court

Atlanta, GA

 8

Hon. Judge Vaughn R. Walker

 9 United States District Court

San Francisco, CA

 10

Professor Steven S. Gensler

 11 University of Oklahoma Law Center

Norman, OK

 12

Hon. Steven M. Colloton

 13 Eighth Circuit Court of Appeals

St. Louis, MO

 14

Peter Keisler

 15 Sidley Austin, LLP

Washington, D.C.

 16

Hon. John G. Koeltl

 17 United States District Court

New York, NY

 18

Hon. Randall T. Shepard

 19 Indiana Supreme Court

Indianapolis, IN

 20

Daniel C. Girard

 21 Girard, Gibbs & DeBartolomeo

San Francisco, CA

 22

Hon. Eugene R. Wedoff

 23 United States Bankruptcy Court

Chicago, IL

 24

(APPEARANCES CONTINUED ON THE NEXT PAGE)

 25

TORREANO SHORTHAND REPORTING (408) 379-0900

2
 1 ADVISORY COMMITTEE:

 2 Laura A. Briggs, Clerk

United States District Court

 3 Indianapolis, IN

 4 Peter McCabe, Secretary

Administrative Office of the 

 5 U.S. Courts

Washington, D.C.

 6

Hon. Michael M. Baylson 

 7 United States District Court 

Philadelphia, PA

 8

John K. Rabiej, Chief

 9 Rules Committee Support Office

Washington, D.C.

 10

 11

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 15

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 19

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TORREANO SHORTHAND REPORTING (408) 379-0900

3
 1 WITNESS LIST

 2 PAGE

 3 Hon. Robert S. Lasnik 11

United States District Court

 4 Seattle, WA 

 5 Hon. David F. Hamilton 22

United States District Court

 6 Indianapolis, IN

 7 Hon. Russel Holland (Via Videoconference) 37 

United States District Court

 8 Anchorage, AK 

 9 Hon. Claudia Wilken 46

United States District Court

 10 Oakland, CA 

 11 Michael R. Nelson 58

Nelson, Levine, de Luca &

 12 Horst, LLC

Blue Bell, PA 19422

 13

Jeffrey W. Jackson 71

 14 State Farm Mutual Automobile

Insurance Company

 15 Bloomington, IN 

 16 Kevin J. Dunne 80

Sedgwick, Detert, Moran &

 17 Arnold, LLP

San Francisco, CA 

 18

Mary Massaron Ross 87

 19 Plunkett Cooney

Detroit, MI 

 20

Sharon J. Arkin 94 

 21 The Arkin Law Firm

Los Angeles, CA 

 22

Elizabeth J. Cabraser 107

 23 Lieff, Cabraser, Heimann & 

Bernstein, LLP

 24 San Francisco, CA 

 25

TORREANO SHORTHAND REPORTING (408) 379-0900

4
 1 WITNESS LIST

 2 PAGE

 3 Stefano G. Moscato, Program Director 118 

National Employment Lawyers

 4 Association

San Francisco, CA 

 5

Peter O. Glaessner 137

 6 Lombardi, Loper & Conant, LLP

Oakland, CA 

 7

Ralph A. Zappala 151

 8 Lewis, Brisbois, Bisgaard &

Smith LLP

 9 San Francisco, CA 

 10 Marc E. Williams, President 157

DRI - The Voice of the Defense Bar

 11 Chicago, IL 

 12 Daniel J. Herling 175

Keller and Heckman, LLP

 13 San Francisco, CA 

 14 Thomas A. Packer 182

Gordon & Rees, LLP

 15 San Francisco, CA 

 16 Andrew B. Downs 190

Bullivant, Houser, Bailey, PC

 17 San Francisco, CA 

 18 Michael T. Lucey, President 202

Federation of Defense and

 19 Corporate Counsel

Gordon & Rees LLP

 20 San Francisco, CA 

 21

Kimberly D. Baker, Secretary-Treasurer 209

 22 DRI - The Voice of the Defense Bar

Chicago, IL 

 23

Jeffrey J. Greenbaum 221

 24 ABA Section of Litigation

Newark, NJ 

 25

TORREANO SHORTHAND REPORTING (408) 379-0900

5
 1 WITNESS LIST

 2 PAGE

 3 Loren Kieve 243 

ABA Section of Litigation

 4 Newark, NJ 

 5 Donald F. Zimmer, Jr. 248

King & Spalding

 6 San Francisco, CA 

 7 Raoul D. Kennedy 252

Skadden, Arps, Slate, Meagher 

 8 & Flom, LLP & Affiliates

San Francisco, CA 

 9

Peter S. Pearlman, Co-Chair, 269 

 10 Rules Committee, The Association 

of the Federal Bar of New Jersey

 11 Saddle Brook, NJ 

 12

 13

 14

 15

 16

 17

 18

 19

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 21

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TORREANO SHORTHAND REPORTING (408) 379-0900

6
 1 San Francisco, California February 2, 2009 

 2 P R O C E E D I N G S

 3 (Whereupon, the hearing commenced at 

 4 8:31 a.m.)

 5 JUDGE KRAVITZ: We have quite a number of 

 6 witnesses. So we're going to try to get started on 

 7 time. I wanted to thank each and every one of you for 

 8 taking the time out from your busy lives to come talk 

 9 to us today about our very important proposals on 

 10 Rule 56 and Rule 26. I have a number of items to 

 11 mention and then we're going to go around and introduce 

 12 ourselves to you and then we'll start. 

 13 First, I'm told that there is one mic for two 

 14 people up here. So you'll have to move the mic back 

 15 and forth. I've also been asked to say if people could 

 16 identify themselves, that is to say members of the

 17 committee, by name when they speak, it will help with 

 18 the record.

 19 I want to particularly thank the judges who 

 20 have -- at each stage of our hearing across the country 

 21 have taken the time out from their very busy days and 

 22 often traveled very far to share with us their 

 23 experiences. This is -- this process is essential to 

 24 the rule-making process, and we are very, very pleased 

 25 that the judges have taken the time to go through our 

TORREANO SHORTHAND REPORTING (408) 379-0900

7
 1 rules and appear before us.

 2 A few words to the speakers. This is our 

 3 third hearing. We had a hearing in Washington in 

 4 November. We had about 17 or 18 witnesses. Then we 

 5 had one in San Antonio in January where we had another 

 6 18 or 19 witnesses. The members of the committee have 

 7 worked hard to read the written comments that you give 

 8 us. 

 9 So I think -- you, of course, can say anything 

 10 you like, but I think the things that will be most

 11 helpful to the committee members are specific 

 12 experiences or specific examples of ways in which you 

 13 think these proposals will work well or will not work 

 14 well.

 15 So I guess I'd just ask you at this stage to 

 16 be as specific as possible. Generalities will be fine 

 17 for the record, but they may not be particularly 

 18 influential at this stage of the proceeding.

 19 Also, if you have ideas about ways in which 

 20 the proposals could be either reworded or could be

 21 reworked to address some of the criticisms that have 

 22 been leveled against them, that, too, would be 

 23 enormously helpful for the committee.

 24 My name is Mark Kravitz and I'm a district 

 25 court judge from New Haven, Connecticut and I have the 

TORREANO SHORTHAND REPORTING (408) 379-0900

8
 1 great privilege and honor to chair the civil rules

 2 advisory committee, and I think right now I'd like to 

 3 go around with my colleagues and have everyone 

 4 introduce themselves to you and then we'll start with 

 5 Judge Lasnik as our first one.

 6 PROFESSOR COOPER: I'm Edward Cooper, the 

 7 University of Michigan Law School and reporter for the 

 8 civil rules committee.

 9 JUDGE ROSENTHAL: I'm Lee Rosenthal. I'm 

 10 chair of the standing committee. I'm a district judge 

 11 in Houston, Texas.

 12 PROFESSOR MARCUS: I'm Rick Marcus. I teach 

 13 at Hastings, about two blocks from here. I'm the 

 14 associate reporter of the committee with focus on 

 15 discovery matters in regard to the committee's work.

 16 MR. HIRT: I'm Ted Hirt from Washington, DC. 

 17 I'm in the civil division at the US Department of 

 18 Justice.

 19 JUDGE HAGY: I'm Chris Hagy, United States 

 20 magistrate judge, from Atlanta, Georgia.

 21 JUDGE WALKER: I'm Vaughn Walker, district 

 22 judge from San Francisco, and this is the building in 

 23 which my papers get graded. 

 24 PROFESSOR GENSLER: I'm Steven Gensler from 

 25 the University of Oklahoma College of Law.

TORREANO SHORTHAND REPORTING (408) 379-0900

9
 1 JUDGE COLLOTON: Steve Colloton, US circuit 

 2 judge for the Eighth Circuit from Des Moines, Iowa.

 3 MR. KEISLER: Peter Keisler with the 

 4 Washington DC office of Sidley Austin. 

 5 JUDGE KOELTL: I'm John Koeltl. I'm on the 

 6 civil rules committee. I'm a district judge in the 

 7 Southern District of New York.

 8 JUSTICE SHEPARD: I'm Randy Shepard. I'm 

 9 chief justice of the Indiana Supreme Court.

 10 MR. GIRARD: I'm Daniel Girard. I'm a civil 

 11 practitioner, a plaintiffs lawyer here in San 

 12 Francisco.

 13 MR. RABIEJ: I'm John Rabiej, civil rules 

 14 committee support office. 

 15 JUDGE WEDOFF: Gene Wedoff. I'm a bankruptcy 

 16 judge in Chicago and the liaison for the bankruptcy 

 17 rules committee to the civil rules committee. 

 18 MS. BRIGGS: I'm Laura Briggs. I'm the clerk 

 19 of court in the Southern District of Indiana and I'm 

 20 the clerks representative on the committee.

 21 JUDGE KRAVITZ: Great.

 22 MR. McCABE: And I'm Peter McCabe. I'm 

 23 assistant director of the administrative office of the 

 24 courts and secretary to the court.

 25 JUDGE BAYLSON: And I'm Michael Baylson and I 

TORREANO SHORTHAND REPORTING (408) 379-0900

10
 1 am a district court judge in Philadelphia and a member 

 2 of the committee and chairman of the Rule 56 

 3 subcommittee.

 4 JUDGE KRAVITZ: So right before we get started 

 5 I do want to express the committee's gratitude to Chief 

 6 Judge Kozinski and all the members of the Ninth Circuit 

 7 family for allowing us to have this hearing here and in 

 8 particular Susan Newell who has organized this 

 9 gathering, and we thank her very much. 

 10 And I would also like to thank Vaughn Walker 

 11 for doing all of the work to organize our stay here in 

 12 San Francisco.

 13 So Judge Lasnik? 

 14 JUDGE LASNIK: Thank you, Mr. Chairman and 

 15 members of the committee. My name is Robert Lasnik. 

 16 I'm the chief judge in the Western District of 

 17 Washington up in Seattle, and it's my great privilege 

 18 to testify here today. 

 19 I want to thank the chairman and members of 

 20 the committee and the very excellent staff you have for 

 21 extending me a number of courtesies, including allowing 

 22 me to testify first so I can catch a plane back to

 23 Seattle and deal with my pending PSLRA class actions 

 24 and a patent case summary judgment motions I have in 

 25 the next few days.

TORREANO SHORTHAND REPORTING (408) 379-0900

11
 1 First I want to start with two reasons why I 

 2 really wish I could fully support all of the 

 3 committee's recommendations and the first one brings me 

 4 to that joke. If you've already heard it, please bear 

 5 with me. There are two answers to this joke. 

 6 How many federal judges does it take to change 

 7 a light bulb? The first one is just one. He holds the 

 8 light bulb up and the entire world revolves around

 9 him. But the one I want to talk about is the second 

 10 answer, which is: "Change? Change? Who said anything 

 11 about change?" 

 12 And of all the organizations I've been 

 13 associated with I have never seen one more resistant to 

 14 change than the federal judiciary. And I can't tell 

 15 you how many times I've seen an excellent good 

 16 innovative idea met with the response, "But that's not 

 17 how we do it."

 18 So I really commend you for taking on this 

 19 project, for doing all the hard work you did, for 

 20 hanging in there. And if the only answer I have for 

 21 why we shouldn't do this was change, I wouldn't be

 22 here.

 23 The second one I will get to at the very end 

 24 of my remarks. However, despite those two very good 

 25 reasons why I wish I could support all the proposals, I 

TORREANO SHORTHAND REPORTING (408) 379-0900

12
 1 must say that we in my district and I personally are 

 2 opposed to the 56(c) point-counterpoint method. 

 3 You know, obviously after hearing as many 

 4 witnesses as you have, no one could argue that 

 5 reasonable minds can differ about whether or not this 

 6 point-counterpoint procedure is an improvement when it 

 7 comes to administering justice. Obviously, very good 

 8 trial judges find it helpful to what they do, but the 

 9 naysayers are not just people who say no to change. 

 10 They are people who have tried the method and 

 11 found it to be wanting for their purposes. And, of 

 12 course, you have the letter from a truly great trial 

 13 judge, Claudia Wilken, and you have the letter from one 

 14 of my colleagues on the chief district. He's the chair 

 15 of the Ninth Circuit, chief district judge, Jack 

 16 Sedwick, who spends a lot of time in Arizona and has 

 17 dealt with both and finds the procedure not helpful to 

 18 reaching just results and more time-consuming and more 

 19 expensive.

 20 On my court I think with Tom Zilly and Barbara 

 21 Rothstein and Bob Bryan, again, for the most part we 

 22 have reasonable minds in the men and women who are

 23 judges in our court. Of course, we do have Judge 

 24 Coughenour, too, but let's set him aside.

 25 But the change will definitely have an added 

TORREANO SHORTHAND REPORTING (408) 379-0900

13
 1 impact in a significant number of cases in the way

 2 judges handle summary judgments and to me the burden of 

 3 proof is on the people who are asking for the change 

 4 here when you have, if not -- you know, I don't know 

 5 what the exact statistics are, but certainly a 

 6 significant minority are using the CR 56 rule as is. 

 7 They are not clamoring for uniformity or begrudging 

 8 those districts that have adopted other procedures

 9 through the local rules. And so why force that 

 10 significant minority to change? 

 11 Yes? 

 12 JUDGE KRAVITZ: Judge, could I just -- while 

 13 you were on that point. What we have heard often from 

 14 practitioners who practice around the country is that 

 15 with something as important as summary judgment there 

 16 is value to uniformity in a uniform federal system, and 

 17 that we obviously don't have that now. And I think, 

 18 you know, one of the motivations of the committee 

 19 starting its work was to say uniformity perhaps is

 20 important and we should have a uniform system for 

 21 dealing with Rule 56.

 22 You may be in favor of uniformity but not this 

 23 rule or you may view that uniformity is not that 

 24 important as it relates to the papers and I just didn't 

 25 know which it was for you.

TORREANO SHORTHAND REPORTING (408) 379-0900

14
 1 JUDGE LASNIK: I think uniformity is a goal 

 2 that should be considered by your committee in doing 

 3 rules, absolutely. But when you come right down to it, 

 4 what the lawyers really want are good judges who are 

 5 handling the cases in an efficient manner. 

 6 And, you know, I had a discovery dispute the 

 7 other day where they attached all of the e-mails and 

 8 one of the ones that my law clerk highlighted for me 

 9 because I would never have found it was an e-mail from 

 10 one practitioner to the other that said, "Hey, I've 

 11 been in the court of that Lasnik. He's one smart 

 12 dude. Your summary judgment motion is not going to be 

 13 granted." 

 14 You know, that's really what the lawyers are 

 15 talking about with the judges. And, you know, the

 16 process is much, I believe, less important to them than 

 17 the quality of the bench. You look at sentencing 

 18 guidelines and see the wide variety of departures from 

 19 different parts of the country, and I know your court 

 20 probably departs, like my court does, a lot more than 

 21 Judge Rosenthal's court does. And yet in trying to 

 22 enforce that uniformity on a national judiciary is very 

 23 difficult to do and maybe it isn't even the right thing 

 24 to do when you come right down to it. 

 25 Judge Rosenthal, you looked like you wanted to 

TORREANO SHORTHAND REPORTING (408) 379-0900

15
 1 ask me something.

 2 JUDGE ROSENTHAL: I did have one question. 

 3 Putting aside for the moment whether the 

 4 default in the national rules should be 

 5 point-counterpoint or some other process, if the 

 6 default allows for a case-by-case variation but does 

 7 not invite or allow for in the rule text a local rule 

 8 exemption for variation, does that raise a concern on 

 9 your part? Is there a view that a case-specific 

 10 ability to deviate is inadequate? 

 11 JUDGE LASNIK: Well, I think we have a 

 12 case-by-case ability to deviate now in the sense that 

 13 somebody like Judge Bryan has a standing order that he 

 14 will use once every five years that says we're going to 

 15 do it the point-counterpoint way in this case and 

 16 here's why. But to make us do a standing order in 99 

 17 percent of our cases to avoid a local rule and to 

 18 pretend that we have uniformity I don't think is an 

 19 honest way to deal with the situation.

 20 JUDGE ROSENTHAL: So your concern at bottom is 

 21 with the point-counterpoint? 

 22 JUDGE LASNIK: Yes, it is. Thank you. 

 23 Yes? 

 24 JUDGE BAYLSON: Hi. I very much appreciate 

 25 you and so many of our colleagues coming here today to 

TORREANO SHORTHAND REPORTING (408) 379-0900

16
 1 speak about this. 

 2 Just by way of background, I do think it's 

 3 important to note that we first started approaching 

 4 Rule 56 because we think in general it is a rule that 

 5 needs some corrections because it really doesn't work 

 6 in practice for a lot of reasons that are in the 

 7 committee notes, and I won't go through them here. So 

 8 we've set about to do a better Rule 56 because it's 

 9 filed in some districts in virtually every civil case 

 10 and takes a great deal of time of judges. So we think 

 11 it calls for improvement. 

 12 The second thing is that there are many 

 13 districts with local rules of one kind or another of 

 14 Rule 56, which sort of, at least in committee, 

 15 evidences a dissatisfaction with the national rule.

 16 Do you see a problem -- and this is sort of a 

 17 converse of Judge Rosenthal's question. Do you see an 

 18 inadequacy in just allowing a judge in a specific case 

 19 to avoid point-counterpoint? Why isn't that 

 20 sufficient? Because our proposal, as I'm sure you

 21 know, allows a judge in a specific case to exempt the 

 22 lawyers from following that procedure.

 23 JUDGE LASNIK: Yeah. And if it were a 

 24 situation where the default rule made the most sense in 

 25 the vast majority of cases and you could opt out of it 

TORREANO SHORTHAND REPORTING (408) 379-0900

17
 1 in a specific case, I wouldn't have a problem with

 2 that, but what we really will end up with is the 

 3 districts maintaining the way they do things now 

 4 because we have tried it and found it wanting or we 

 5 have tried it and found it too cumbersome and too 

 6 expensive.

 7 And I believe that if there are -- there are 

 8 problems with summary judgment, that they probably

 9 have -- they will be there no matter what system you 

 10 use. The problems may have to do with lawyers who are 

 11 churning cases inappropriately, lack of training and 

 12 education among the lawyers.

 13 Our bar up in the Western District -- and they 

 14 practice nationally. We're talking about firms that 

 15 have a national practice up there. We're not pioneer 

 16 country anymore. They are very satisfied with the way 

 17 cases are handled in the Western District of Washington 

 18 under the existing CR 56. And I think to force us to 

 19 enter orders, case-specific orders will make us feel 

 20 like, you know, why are -- why is this national 

 21 committee forcing us to go through what we think and 

 22 our lawyers think is basically a charade.

 23 JUDGE KRAVITZ: Judge Rothstein, I think, told 

 24 me that you all had point-counterpoint at one point and 

 25 then you switched.

TORREANO SHORTHAND REPORTING (408) 379-0900

18
 1 JUDGE LASNIK: No. I don't think we've had it 

 2 up there, but we've all used it either -- 

 3 JUDGE KRAVITZ: In individual cases. 

 4 JUDGE LASNIK: -- in individual cases or we 

 5 sit in other -- you know, the Ninth Circuit, the 

 6 advantage of having 13 districts is we can come to each 

 7 other's help occasionally, as Judge Sedwick and the 

 8 other Alaska judges have done with Arizona and San

 9 Diego and the border states that are inundated with 

 10 criminal cases. So we've all used it at one time or 

 11 another. 

 12 You know, I'll be the first one to say if you 

 13 don't have a lot of experience using it, you may not be 

 14 using it as efficiently. But the Northern District of 

 15 California had that experience, Judge Sedwick has that 

 16 experience, and some of our judges have spent a great 

 17 deal of time in districts that have it, and they don't 

 18 like it.

 19 The last thing I wanted to get to is the 

 20 second reason why I wish I could support all of it -- 

 21 and we do support the rest of it. Our only concern is 

 22 with 56(c) -- is I think that a lot of our colleagues 

 23 don't appreciate how much time and effort you all put 

 24 into the work you're doing and that your motives and 

 25 your agenda is purely to improve the federal 

TORREANO SHORTHAND REPORTING (408) 379-0900

19
 1 judiciary. 

 2 And no one knows that more than my colleague 

 3 Tom Zilly who chaired the bankruptcy rules committee 

 4 during one of the most difficult times possible and 

 5 spent a great deal of time putting together what I

 6 think are great bankruptcy rules under tremendous time 

 7 pressure because of the Reform Act.

 8 And so for somebody like Judge Zilly, Judge 

 9 Rothstein and myself to have to criticize the rule is a 

 10 difficult thing for us to do. My penance is paid on 

 11 the national budget committee where I chair the 

 12 congressional outreach subcommittee. The "get me the 

 13 money committee" is what Bob Broomfield calls it, and 

 14 it is the one committee where you know that you are on 

 15 it because of merit. If you have a senator or a 

 16 congressman who is a powerful person, it merits you 

 17 being on the budget committee. Mine is Senator Patty 

 18 Murray in Seattle.

 19 But we put in an incredible amount of time and 

 20 don't always get a lot of appreciation when we talk 

 21 about cost containment and we talk about other things. 

 22 But the reason I mention it is we are headed for a

 23 difficult time. We'll be okay in fiscal year '09 and 

 24 the expected appropriations bill to fund this year will 

 25 come by the end of this month and hopefully it will 

TORREANO SHORTHAND REPORTING (408) 379-0900

20
 1 have a judges COLA in it. 

 2 But going forward it's going to be a difficult 

 3 time and we're going to be asked to do more with less. 

 4 And when judges really don't want to take on a 

 5 procedure that they see as more expensive for the 

 6 lawyers, more time consuming and, therefore, more 

 7 expensive for themselves and less efficient, it hurts 

 8 morale frankly to have a situation like that, 

 9 especially when you're being asked to do more with

 10 less, to cut out career law clerks, to restrain 

 11 spending on travel, to suddenly have to put in standing 

 12 orders to use the rule you've always used or to find 

 13 yourself dealing with a new rule when there's really no 

 14 groundswell within your bar to change things is 

 15 something that will definitely have an impact on 

 16 morale.

 17 So for those reasons I urge the committee to 

 18 not adopt the point-counterpoint measures. 

 19 JUDGE KRAVITZ: Thank you.

 20 JUDGE LASNIK: Thanks very much. I appreciate 

 21 it.

 22 JUDGE KRAVITZ: Thank you for coming down here 

 23 and sharing your views. I'm sure the locale had 

 24 nothing to do with you coming down here.

 25 JUDGE LASNIK: Well, the timing, it's always a 

TORREANO SHORTHAND REPORTING (408) 379-0900

21
 1 pleasure to come to San Francisco. You know, I also 

 2 chaired the Ninth Circuit judicial conference and I've 

 3 had an opportunity to work with Susan Newell who's just 

 4 an incredible person. It is always a pleasure to come 

 5 to San Francisco. As Judge Walker says, it's the place 

 6 where our decisions come to die. It's also the place 

 7 where a lot of the United States Supreme Court cases 

 8 are born.

 9 JUDGE KRAVITZ: Travel safely.

 10 Judge Hamilton?

 11 JUDGE HAMILTON: Thank you, Mr. Chairman, and 

 12 thank you all for the opportunity to speak at the 

 13 hearing.

 14 I also appreciate very much the careful 

 15 attention that you all and your staffs are doing on 

 16 these important proposals. They are technical, they 

 17 are arcane, but they really are very important.

 18 Let me explain briefly why I am here. As the 

 19 saying goes, good judgment comes from experience. 

 20 Experience often comes from bad judgment. In 1998, 

 21 motivated, I think, by many of the same concerns that 

 22 are driving the national proposal, our district adopted 

 23 a local rule that is similar in many ways to the 

 24 proposal you all are considering. We experienced some 

 25 significant problems and made substantial changes in 

TORREANO SHORTHAND REPORTING (408) 379-0900

22
 1 2002.

 2 If the committee intends to go forward with 

 3 the proposed national change, I offer these 

 4 observations and suggestions based on the experience of 

 5 our court and our bar with that rule.

 6 Frankly I hope the committee and the nation 

 7 can learn from some of our mistakes. I also should say 

 8 that I'm speaking on behalf of all of my colleagues 

 9 with the exception at one point of surreplies, which is 

 10 just a majority of my colleagues on the district court.

 11 I'd like to talk really about three things, 

 12 not everything that's in the written submission. First 

 13 is on limits to the point-counterpoint submissions, 

 14 second is the surreplies, and third on flexibility in 

 15 enforcement.

 16 When we first adopted the requirements for 

 17 point-counterpoint statements of material facts and 

 18 disputed material facts, we required that they be filed 

 19 as separate documents as the pending proposal, as I 

 20 understand it, would. A significant problem emerged 

 21 quickly. The separate point-counterpoint documents 

 22 provided a new arena for unnecessary controversy. We 

 23 began seeing huge, unwieldy and especially expensive 

 24 presentations of many hundreds of factual assertions 

 25 with paragraphs of debate about each one of those.

TORREANO SHORTHAND REPORTING (408) 379-0900

23
 1 By the end of the briefing the complete 

 2 documents for the disputed or undisputed facts ran well 

 3 over 100 pages. By way of a few examples, and I say 

 4 this for the record, these are all cases in which there 

 5 would be one plaintiff in an employment discrimination 

 6 case or a civil rights case. These are run-of-the-mill 

 7 cases. 

 8 A case called Rotor versus Hendricks Hospital, 

 9 489 paragraphs of facts, a total of 300 pages of briefs 

 10 and statements. A case called Jackson against Service

 11 Engineering, 347 paragraphs. Curley versus Dill, 335 

 12 paragraphs. Harvest against Prestige Group, 548 pages 

 13 of submissions on a routine summary judgment motion 

 14 where the defendant tried to dispute 582 of the 

 15 plaintiff's 675 assertions of disputed material facts. 

 16 And the case called Kirby versus Anthem where 

 17 the final product was 117 pages of point-counterpoint 

 18 with 331 paragraphs being contested. Those are all 

 19 things that I found quickly that I had dealt with 

 20 myself in the few years that this rule was in effect. 

 21 We found that lawyers were too often using 

 22 statements and responses to argue every conceivable 

 23 evidentiary objection and point of relevance, sterile 

 24 objections, trivial arguments that would never be made 

 25 in a trial in front of a judge with limited time or a 

TORREANO SHORTHAND REPORTING (408) 379-0900

24
 1 jury with less patience than that. Junior associates 

 2 were seeming to treat the whole process, the 

 3 statements, as a kind of graduate course in evidence 

 4 law where you got the best grade by trying to raise as 

 5 many objections as you possibly could.

 6 And these objections and arguments were being 

 7 made on paper simply because they could be. And in 

 8 substance what we were seeing was an exponential 

 9 increase of the kinds of motions to strike all 

 10 presented through the point-counterpoint 

 11 paragraph-by-paragraph debates. And the rule, 

 12 frankly -- the result was very far from the goal of 

 13 Rule 1 that I know we all share of a just, speedy and 

 14 inexpensive determination of civil actions.

 15 Now, we were not united on all of this, but we 

 16 were troubled by these developments and our court was 

 17 reluctant to abandon the point-counterpoint rule 

 18 entirely. We had seen some benefits, some clarity in 

 19 presentation by requiring the format, but we found a 

 20 simple and effective correction in 2002. 

 21 Instead of requiring the facts to be presented 

 22 in a separate document, we now simply required that the 

 23 moving party's brief contain a statement of undisputed 

 24 material facts within the pages of the brief. The

 25 non-moving party's brief similarly must contain a 

TORREANO SHORTHAND REPORTING (408) 379-0900

25
 1 response to the moving party's statements and any 

 2 additional facts again within the page limits of the 

 3 briefs. 

 4 This simple solution just takes advantage of 

 5 page limits on briefs, which I assume are universal. 

 6 We're fairly generous. We allow 35, 35 and 20 in our 

 7 court. This step requires attorneys to use their space 

 8 wisely, and it's been very effective in reducing the 

 9 volume and I think expense. That's what I hear from 

 10 lawyers that I have talked to and from my colleagues. 

 11 It's not perfect.

 12 JUDGE KRAVITZ: Judge Hamilton, excuse me. I 

 13 didn't mean to interrupt you.

 14 JUDGE HAMILTON: Please.

 15 JUDGE KRAVITZ: Are they required to have 

 16 citations to the record? 

 17 JUDGE HAMILTON: Yeah. We have all that. 

 18 But, you know, each sentence you've got to pinpoint 

 19 cites on the record and all that. And that's helpful. 

 20 That's very helpful. I was not originally a fan of 

 21 this idea, and I came around to say, okay, that's a 

 22 good thing to see.

 23 But by just using the page limits we let 

 24 people use their professional judgment instead of 

 25 feeling as though they have to contest every single 

TORREANO SHORTHAND REPORTING (408) 379-0900

26
 1 point.

 2 JUDGE COLLOTON: Are they still formatted as 

 3 individual points? 

 4 JUDGE HAMILTON: Yes. 

 5 JUDGE COLLOTON: Or are they just in the text 

 6 of an argument? 

 7 JUDGE HAMILTON: Right.

 8 JUDGE COLLOTON: No. I mean, are they set out 

 9 separately as individual facts or are they just weaved 

 10 into the text of an argument? 

 11 JUDGE HAMILTON: We allow flexibility. In the 

 12 statement of facts, just as you would expect in an

 13 appellate brief, you lay out your facts with the 

 14 citations and then you put your arguments after that. 

 15 And that works -- that works pretty effectively. 

 16 Yes? 

 17 JUDGE WEDOFF: But in numbered paragraphs so 

 18 that there can be a response to the numbered 

 19 paragraph? 

 20 JUDGE HAMILTON: We are a little more flexible 

 21 about the format than necessarily now requiring a 

 22 single sentence, but it is very clear if you're the 

 23 moving party, if you make a specific assertion and

 24 there's not a specific rebuttal, then we'll treat it as 

 25 undisputed -- 

TORREANO SHORTHAND REPORTING (408) 379-0900

27
 1 JUDGE KRAVITZ: As undisputed. Okay.

 2 JUDGE HAMILTON: -- for purposes of the 

 3 motion.

 4 JUDGE KRAVITZ: And we've heard -- some 

 5 suggestions are we should cap the number of statements 

 6 of fact so we don't have 500, and your solution is by 

 7 having the page limits on the brief, the lawyers end up 

 8 capping themselves.

 9 JUDGE HAMILTON: Exactly. 

 10 JUDGE BAYLSON: I'm sorry. Judge Hamilton, as 

 11 you know, the national rule at the moment doesn't refer 

 12 to the briefs at all. Whatever our proposal would be, 

 13 would you see an advantage if a national rule discussed 

 14 briefs and required that if there were not to be these 

 15 separate statements, that the brief would contain 

 16 specifically designated -- alleged asserted undisputed 

 17 facts with pinpoint citations for the record? 

 18 JUDGE HAMILTON: I think I agree with that, 

 19 yeah. I'm not sure as I'm sensitive to all of the

 20 nuances of the national rule that you are, but I just 

 21 don't want things to get worse for our district. 

 22 JUDGE KRAVITZ: Judge Koeltl and then Chief 

 23 Justice Shepard. 

 24 JUDGE KOELTL: Don't you still get voluminous 

 25 affidavits in support and in opposition for the motion 

TORREANO SHORTHAND REPORTING (408) 379-0900

28
 1 for summary judgment? And if lawyers in your district 

 2 used the point-counterpoint to develop a whole new

 3 practice of motions to or some challenge, couldn't you 

 4 still get them from the affidavits? 

 5 JUDGE HAMILTON: No, we don't. You know, 

 6 obviously, we get massive submissions of exhibits,

 7 deposition excerpts and so on. Some -- some people 

 8 will try to fix the problems in their cases with 

 9 lengthy affidavits and the like. There is some of

 10 that, but the experience before we went from the 

 11 separate statements to putting it in the briefs has 

 12 been a dramatic change in our district. Yes, there are 

 13 ways to abuse just about any system, but having the 

 14 separate and unlimited point-counterpoint was just

 15 inviting difficulties in my experience.

 16 JUSTICE SHEPARD: Well, that's really the 

 17 question I wanted to ask. It seems to me if you had, 

 18 for example, no limit on briefs, then what can happen 

 19 would happen, as you described earlier. Wouldn't one 

 20 say the same thing about a decision to put a limit on 

 21 the number of pages in a statement of facts if it were 

 22 a separate matter and what -- why did you choose to put 

 23 the limit in the brief rather than keep what you had in 

 24 '98 and put a limit on the number of pages in the 

 25 statement of facts? 

TORREANO SHORTHAND REPORTING (408) 379-0900

29
 1 It seems to me you've done the same thing, but 

 2 what did you perceive to be the benefit of creating the 

 3 limit inside the brief as creating the limit inside the 

 4 statement of facts? 

 5 JUDGE HAMILTON: Well, I think the limit is 

 6 the opening brief -- the opening party's submission is 

 7 35 pages rather than saying 35 plus 35 or something 

 8 like that.

 9 In addition -- 

 10 JUSTICE SHEPARD: I understood that, but did 

 11 you not have the authority to decide that the statement 

 12 of facts could only be 35 pages? Was that -- 

 13 JUDGE HAMILTON: Oh, I'm sure we could have, 

 14 yeah. 

 15 JUSTICE SHEPARD: Why did you think it better 

 16 to place the limit inside the brief rather than --

 17 JUDGE HAMILTON: Because the limit is -- the 

 18 effective limit is lower that way and you reduce the 

 19 number of documents that need to be prepared, that need 

 20 to be edited, et cetera.

 21 So I think that was pretty effective.

 22 JUDGE WALKER: Judge Hamilton, can I direct 

 23 your attention to the specific committee proposal. If 

 24 I understand your thinking, the problem that you 

 25 foresee with the proposal is with the separate 

TORREANO SHORTHAND REPORTING (408) 379-0900

30
 1 statement aspects of it which is contained in 

 2 subparagraphs (1), (2) -- certainly (1) and (2) of (c), 

 3 but that you do not find problematic the balance of the 

 4 proposal requiring when citing to a specific claimed 

 5 dispute of facts or undisputed fact, that that must be 

 6 supported by reference to the underlying evidentiary 

 7 material, the depositions, the interrogatory responses, 

 8 the documents and so forth. That would be the portions 

 9 beginning with (c)(4) through (c)(6).

 10 Is that a fair interpretation of your 

 11 statement? 

 12 JUDGE HAMILTON: Well, I think it is, yes. 

 13 Yes. The benefit that we experienced was from the

 14 requirement for specific evidentiary citations. And 

 15 obviously the problem arises, let's say, in a typical 

 16 employment discrimination case where the decision-maker 

 17 puts in as fact number 33 how do you base this decision 

 18 upon the employment attorney's agenda. The 

 19 counterpoint to that is in a lot of cases it's going to 

 20 have to be: "See my whole brief. It's all my 

 21 evidence. It's circumstantial."

 22 JUDGE KRAVITZ: And I had one the other day, 

 23 which was "there was no hostile work environment."

 24 JUDGE HAMILTON: "See paragraph 5 of my 

 25 affidavit."

TORREANO SHORTHAND REPORTING (408) 379-0900

31
 1 So for the reasons that I've discussed, if you 

 2 intend to move forward with the point-counterpoint

 3 format, I would urge you to consider some effective 

 4 limitations on length. I won't say that is the only 

 5 way to do it, as Chief Judge Shepard has pointed out. 

 6 Those are the reasons we chose to do it and it worked 

 7 for us. 

 8 If you disagree, I would ask you to at least 

 9 please write the rules in such a way that local rules 

 10 could impose such limitations effectively. 

 11 Yes? 

 12 MR. KEISLER: Judge Hamilton, you said in your 

 13 written testimony that you thought these changes could 

 14 affect outcomes and I'm just wondering whether in your 

 15 experience -- was there some systemic effect on 

 16 outcomes with point-counterpoint that makes it more 

 17 likely to be granted, less likely to be granted, more 

 18 likely in particular types of cases? 

 19 JUDGE HAMILTON: That comes to the third point 

 20 that I wanted to address, which is flexibility of 

 21 enforcement, Mr. Keisler.

 22 I think the point-counterpoint part of that 

 23 introduces new levels of expense and new levels of

 24 complexity in the federal rules that, frankly, lawyers 

 25 who are more sophisticated and familiar with the rules 

TORREANO SHORTHAND REPORTING (408) 379-0900

32
 1 will use to beat up lawyers who are not as 

 2 sophisticated.

 3 And we began to see a lot of debate and 

 4 motions along those lines. One more extreme example 

 5 that I saw was "strike this paragraph because it 

 6 repeats something that we said in our own submission" 

 7 or "strike the headings in the statement of material 

 8 dispute of facts because" -- it was just -- it was

 9 silly.

 10 That in our experience with all of these 

 11 extra -- the extra friction that was generated by the 

 12 opportunities to criticize the opponent's failure to 

 13 comply strictly with the rule was to introduce a new 

 14 provision that says the Court may in the interest of 

 15 justice or for good cause excuse failure to comply

 16 strictly with the terms of this ruling. Because you're 

 17 not going to see strict compliance from an awful lot of 

 18 people. 

 19 And that has been very helpful in sending a 

 20 signal to the bar, as a few decisions from the court 

 21 will as well, saying, "Look, don't bother us with the 

 22 minor deviations here, with the numbering systems or 

 23 whatever they might be." But I -- but the 

 24 opportunities look too good to beat up the opponent 

 25 could wind up affecting outcomes. 

TORREANO SHORTHAND REPORTING (408) 379-0900

33
 1 Judge?

 2 JUDGE ROSENTHAL: Within the changes that 

 3 you've imposed has there continued to be a need to

 4 exempt particular cases that depart from the rule or do 

 5 we take care of the cases that don't seem to fit this 

 6 point-counterpoint structure well by forgiving 

 7 non-compliance at the back end?

 8 JUDGE HAMILTON: I don't exempt anything from 

 9 that rule.

 10 JUDGE ROSENTHAL: Is that pretty common within 

 11 your district? 

 12 JUDGE HAMILTON: I believe so. I haven't 

 13 heard of anybody being exempt.

 14 JUDGE ROSENTHAL: How about in pro se cases? 

 15 JUDGE HAMILTON: We give them a signal. We 

 16 send them a rule. We are flexible, very flexible with 

 17 pro se litigants. The main thing we want from the pro 

 18 se litigants is at least give us a signed affidavit of 

 19 what you're telling us. 

 20 JUDGE ROSENTHAL: And do any judges have 

 21 standing orders that deviate from the local rule? 

 22 JUDGE HAMILTON: Not that I'm aware of. 

 23 Professor? Go ahead.

 24 PROFESSOR MARCUS: Judge, your example of an 

 25 employment discrimination case causes me to remember 

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34
 1 things we've heard that you haven't mentioned about 

 2 point-counterpoint. One argument has been that this 

 3 arrangement interferes with the ability to argue 

 4 inferences, like whether there was a basis for 

 5 suspecting gender or race-based discrimination.

 6 Have you found in your experience that that 

 7 kind of consequence followed from the 

 8 point-counterpoint method of doing things? 

 9 JUDGE HAMILTON: No, no.

 10 PROFESSOR MARCUS: You wouldn't think we 

 11 should worry about that? 

 12 JUDGE HAMILTON: I have not seen that. The 

 13 Seventh Circuit, which grades my papers, is a pretty 

 14 well-developed body of law on the way, for example, in 

 15 a discrimination case the plaintiff can develop what it 

 16 calls a convincing mosaic of circumstantial evidence to 

 17 put the case together. 

 18 It's just that you have to take the individual 

 19 tiles of that mosaic, lay them out in your factual

 20 statement and then put the narrative together that

 21 supports the case. But I think it's been helpful to at 

 22 least letting people -- focusing people on the specific 

 23 evidence that supports this.

 24 JUDGE KRAVITZ: Do you want to mention the 

 25 surreplies as well? 

TORREANO SHORTHAND REPORTING (408) 379-0900

35
 1 JUDGE HAMILTON: Yeah. I want to wrap up as 

 2 quickly as I can. That could be helpful. On this I 

 3 speak only for a majority of our court. I know that 

 4 this may drive people crazy to give a surreply of 

 5 right, but we see all the time in the district court 

 6 reply briefs from moving parties that either raise new 

 7 evidence or object to admissibility for the first time 

 8 of a non-moving party's efforts. And it just seems to 

 9 me basic fairness the non-moving party has to have an 

 10 opportunity to respond to those.

 11 We keep it short. We keep it limited with a 

 12 short time frame. We've also seen that come in very 

 13 handy so far in avoiding at least one appellate 

 14 reversal where the seventh party was complaining after 

 15 losing on summary judgment, there was all this new

 16 evidence put into the reply brief. And so the 

 17 Circuit's response in a case called Bell v. Daimler

 18 Chrysler was look at the Southern District's Local Rule 

 19 56.1(d). It lets you file a surreply. If you didn't 

 20 take advantage of that, don't come complaining to us 

 21 about it. 

 22 It was effective, it was limited, and I 

 23 recommend it with those kind of limitations just to be 

 24 fair.

 25 For other points I'll be happy to stick with 

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36
 1 what I said in my written submissions. I appreciate 

 2 your patience and, if there are other questions, I'll 

 3 answer them.

 4 JUDGE KRAVITZ: Judge Hamilton, thank you so 

 5 very much.

 6 JUDGE HAMILTON: Thank you again.

 7 JUDGE KRAVITZ: Some of your ideas and the way 

 8 you dealt with it in your court is different than what 

 9 we've heard before. So it's been very valuable.

 10 JUDGE HAMILTON: Again, thank you very much 

 11 for all the time that you all put into this. It 

 12 affects all of our daily lives.

 13 JUDGE KRAVITZ: So we're now going to switch 

 14 to Anchorage, Alaska, I believe, and Judge Holland

 15 who's been good enough to be with us. 

 16 And how's that volcano doing? 

 17 JUDGE HOLLAND: At last report it hadn't done 

 18 anything yet. It's burping.

 19 JUDGE KRAVITZ: Well, that's good. 

 20 I want to thank you, Judge Holland, for being 

 21 willing to share your views with us today. We know 

 22 that -- from the written submissions that the Alaskan 

 23 judges have a unique position here since you don't have 

 24 point-counterpoint in Alaska but have a lot of 

 25 experience dealing with it in Arizona. So I thank you 

TORREANO SHORTHAND REPORTING (408) 379-0900

37
 1 for being willing to share with us your experiences. 

 2 JUDGE HOLLAND: Thank you very much, Judge 

 3 Kravitz. 

 4 Members of the advisory committee, I thank you 

 5 and I thank our Mr. Ward and your Mr. Copeland for

 6 making it possible for me to make a virtual 

 7 appearance. Instead of flying what, 1,500 miles or 

 8 something like that, I walk about 200 feet to be with 

 9 you today. And I really appreciate the opportunity to 

 10 do it this way.

 11 As you may know, I am senior judge for the 

 12 District of Alaska. I've been with our court for 

 13 almost 25 years. Our Chief Judge, Jack Sedwick, has 

 14 been with our court since 1992. In addition to our 

 15 Alaska work, both of us take assignments from the 

 16 District of Arizona and my recollection is that both of 

 17 us have been doing that for approximately ten years. 

 18 We take run-of-the-mill civil cases. We're 

 19 both on the draw there. We get everything from very 

 20 complex patent cases to the mundane student loan 

 21 recovery cases. We see motions for summary judgment in 

 22 many of those cases. 

 23 As you've mentioned, Alaska operates under the 

 24 Rule 56 as presently formulated and always has. 

 25 There's no local rule here on the subject.

TORREANO SHORTHAND REPORTING (408) 379-0900

38
 1 Arizona, on the other hand, has a Rule 56.1, 

 2 which, very much like the proposed Rule 56(c) requires 

 3 a separate statement of facts in connection with every 

 4 motion for summary judgment.

 5 As a consequence, we are in a position to make 

 6 some comparisons, I think, although I will confess

 7 right up front that no one has seen this change coming 

 8 and has done no empirical study, no study at all, 

 9 frankly. What we're sharing with you is our best 

 10 anecdotal response to the proposed rule change.

 11 We, Judge Sedwick and I, hold our other 

 12 judges, our other active judges, two of them are 

 13 opposed to this rule change, and our other senior 

 14 judge, Jim Singleton, joins us in opposing this rule 

 15 change. Rule 1 of the Federal Rules of Civil Procedure 

 16 informs us that the purpose of the Federal Rules of 

 17 Civil Procedure is to, quote, "secure the just, speedy 

 18 and inexpensive termination of every action or 

 19 proceeding," end quote.

 20 I submit that, in our opinion, proposed Rule 

 21 56(c) does not comport with the expression of purpose 

 22 in Rule 1. 

 23 The proposed Rule 56(c) requiring a separate 

 24 statement of facts in substance says very explicitly 

 25 that each motion for summary judgment is to be 

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39
 1 supported by a memorandum of points and authorities and 

 2 a mandatory separate statement of facts. A response is 

 3 required and also a mandatory bundle of facts. A 

 4 moving party statement of facts, is also required. 

 5 Finally, a reply memorandum with mandatory responses to 

 6 any new facts that are asserted in response to the

 7 motion. 

 8 In our Arizona practice, this procedure 

 9 typically results in a lengthy chronological 

 10 explanation of what the case is about. That sort of 

 11 presentation more often than not does not comport with 

 12 the sensible assembling of facts in support of various 

 13 issues that a motion presents.

 14 In other words, under the present practice we 

 15 have almost universally an effective, meaningful 

 16 statement of facts key to the issue that the attorney 

 17 feels entitles him to motion for summary judgment. 

 18 With the separate statement of facts, quite simply, we 

 19 doubled the number of documents that a court must 

 20 analyze, assemble and evaluate for purposes of deciding 

 21 a motion for summary judgment.

 22 As a consequence, the proposed Rule 56(c) 

 23 increases the amount of time an attorney has for 

 24 preparation of such motions, responding to them, 

 25 replying to them, and necessarily in process it 

TORREANO SHORTHAND REPORTING (408) 379-0900

40
 1 increases the cost to the litigants.

 2 But there is from a personal standpoint a more 

 3 important problem that we perceive with the proposed 

 4 change and that is that it does not facilitate, in our 

 5 opinion, the work of the Court.

 6 The present Rule 56 requires a moving party to 

 7 show that undisputed facts entitle that party to a

 8 judgment as a matter of law. Presently that 

 9 proposition is put forth by the moving party in a 

 10 well-considered single memorandum. Today a district 

 11 judge receives all of the information needed to decide 

 12 and understand a motion for summary judgment in three 

 13 pleadings supported by references to affidavits, 

 14 depositions and documents.

 15 The point-counterpoint summary judgment motion 

 16 practice in Arizona routinely doubles the number of 

 17 documents that a court must coordinate in order to

 18 decide a motion. It requires an artificial separation 

 19 of the material facts from issues that have to be 

 20 decided in a case. Local rules, as has been mentioned 

 21 earlier, typically place limitations on the memoranda 

 22 in support of motions for summary judgment. Those

 23 limitations, in effect, put a fence around the motion 

 24 practice -- a very useful one.

 25 Under the proposed practice and under the 

TORREANO SHORTHAND REPORTING (408) 379-0900

41
 1 Arizona local rule that fence is in substance let down 

 2 and as a consequence the page limitations that have 

 3 been imposed, I think, largely as a result of civil 

 4 justice reform 10 or 15 years ago, become almost a dead 

 5 letter because the separate statement of facts even 

 6 requiring separate paragraphs and single subject 

 7 statements simply offer to counsel another opportunity 

 8 to argue its case. 

 9 District judges, in my opinion, perceive in 

 10 the main well-crafted single memoranda of points and 

 11 authorities in support of motions for summary 

 12 judgment. That system works well for us in Alaska. In 

 13 Arizona we spend much more time doing summary judgment 

 14 motion practice simply because of the presence of the 

 15 requirement of that sterile statement of facts that 

 16 duplicates what as a practical matter counsel also have 

 17 to put in their memorandum of points and authorities.

 18 An additional problem in that respect that is 

 19 spawned by the point-counterpoint system for dealing 

 20 with motions for summary judgment, and that has to do 

 21 with the subject again mentioned already that, for

 22 reasons that are not apparent to me at all, the 

 23 point-counterpoint approach to summary judgment motions 

 24 spawns separate motion practice. 

 25 In Alaska we don't see that. In Arizona we 

TORREANO SHORTHAND REPORTING (408) 379-0900

42
 1 see it routinely. I estimate between a third and a 

 2 half of the cases that give us summary judgment motions 

 3 will involve a motion to strike something for some

 4 reason, usually a squabble over the evidentiary support 

 5 of the statement of facts.

 6 JUDGE KRAVITZ: Judge Holland? 

 7 JUDGE HOLLAND: Yes?

 8 JUDGE KRAVITZ: You don't see motions to 

 9 strike with respect to affidavits in Alaska?

 10 JUDGE HOLLAND: I cannot say it has never 

 11 happened. It probably has, but not with the frequency 

 12 that we see it in Arizona. In Alaska the questions of 

 13 materiality and the evidentiary support of the 

 14 affidavits and the deposition experts, those -- those 

 15 squabbles exist, but, in our experience, they are 

 16 addressed in the memoranda.

 17 There is -- there is an interesting variant 

 18 between the Arizona rule and that proposed as Rule

 19 56(c). The Arizona rule doesn't appear to place any 

 20 limitations on the type of facts that may be put in the 

 21 separate statement of facts that's required. The 

 22 proposed rule says that only those material facts that 

 23 cannot be generally disputed should be in the separate 

 24 statement of facts. 

 25 I'm playing prophet here just a bit, but given 

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43
 1 our experience with the motion practice and subsidiary 

 2 summary judgment motions in Arizona, I think it's a 

 3 foregone conclusion that that only requirement will be 

 4 another occasion for subsidiary motion practice, 

 5 contentions by counsel that the statement of facts of 

 6 the opposing party has not been limited only to 

 7 material facts. 

 8 The response to that, as I'm sure you can 

 9 imagine, is going to be, "Well, we think it is 

 10 material, but, Judge, if you disagree with us, it's 

 11 just necessary background anyway. You need to 

 12 understand what this case is all about."

 13 You know, that may be true, but I submit to 

 14 you that the more effective way to deal with all of 

 15 these things is to leave Rule 56 exactly the way it is 

 16 today. In our opinion, that rule works. It works

 17 well. We do not have problems with subsidiary motion 

 18 practice, but I fear that we will be confronted with it 

 19 if Rule 56(c) is adopted.

 20 It's an old saw that I hesitate to repeat, but 

 21 there's some truth to it. "If it ain't broke, don't 

 22 fix it." In our opinion, Rule 56 isn't broken as 

 23 presently formulated. With sensible page limits on 

 24 Memorandum and good work -- good attorney work product, 

 25 which happily we see regularly, a party's position can 

TORREANO SHORTHAND REPORTING (408) 379-0900

44
 1 be well and adequately put forth in a form that is most 

 2 useful to the court, that is, in the context of the 

 3 legal issue to be decided in a single memorandum of 

 4 points and authorities.

 5 District judges of Alaska oppose the change to 

 6 Rule 56(c).

 7 JUDGE KRAVITZ: Thank you, Judge Holland. 

 8 There's some questions here and Judge Rosenthal has one 

 9 right now.

 10 JUDGE HOLLAND: I saw the hand go up. 

 11 JUDGE ROSENTHAL: I actually don't have a 

 12 question, Judge, although I wanted to express my 

 13 appreciation for your remarks, but also given the 

 14 description of the happy state of summary judgment

 15 practice in Alaska, do you have any vacancies in your 

 16 court? 

 17 JUDGE HOLLAND: We -- we will have one coming 

 18 up in what? A year or a year and a half when Judge 

 19 Sedwick goes senior.

 20 JUDGE KRAVITZ: I think she's looking for 

 21 volunteers to come down to Texas.

 22 JUDGE HOLLAND: Well, I'll tell you. 

 23 Volunteering for the District of Arizona keeps me 

 24 pretty busy.

 25 JUDGE KRAVITZ: I hope you do it only in the 

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45
 1 wintertime.

 2 JUDGE HOLLAND: Well, I get asked about that 

 3 all the time and, quite frankly, I tell Arizona 

 4 lawyers, "Look, you guys don't want to come up here in 

 5 the wintertime. I don't want to go to your territory 

 6 in the summertime." And I don't. 

 7 JUDGE KRAVITZ: A wise judge. I don't know if 

 8 there are any other questions. 

 9 I will say I thank you again so very much, 

 10 Judge Holland, and your chief judge, Judge Sedwick, for 

 11 taking the time to share with us your views. I very 

 12 much appreciate it and the committee does as well.

 13 JUDGE HOLLAND: We're glad to do it and thank 

 14 you for the opportunity to do it in this efficient

 15 way. 

 16 JUDGE KRAVITZ: Great. Thank you. 

 17 So we have Judge Wilken right now. You get 

 18 the award for the nearest appearance.

 19 JUDGE WILKEN: So far I'll say.

 20 JUDGE KRAVITZ: We nonetheless appreciate your 

 21 taking the time out from your busy day to share your 

 22 views with us. 

 23 JUDGE WILKEN: Well, thank you for inviting 

 24 us.

 25 I'm Claudia Wilken. I'm a district judge in 

TORREANO SHORTHAND REPORTING (408) 379-0900

46
 1 the Northern District of California and I sit in one of 

 2 our divisional offices across the Bay in Oakland. 

 3 I'd like to start by thanking all of you for 

 4 the work you've been doing on Rule 56. I agree that 

 5 Rule 56 very much does need to be revised and I 

 6 appreciate the efforts that you've made to revise it. 

 7 As a member of our court's local rules 

 8 committee and sometimes the chair of it, I know how 

 9 hard it is to write a rule that is clear and fair and 

 10 devoid of unintended ambiguity, makes all the lawyers 

 11 and judges happy in all the different types of cases. 

 12 And I know what's even harder is to struggle and fight 

 13 over every word and phrase, put them out and then have 

 14 everyone come in at the last minute and criticize them 

 15 and try to micromanage them. 

 16 So I'm here reluctantly, not because I do wish 

 17 to micromanage, but just because of the one point of 

 18 Rule 56(c), the point-counterpoint one which I feel 

 19 strongly about and which our court feels strongly about 

 20 and which our court, as others have mentioned, has had 

 21 some experience with that I would like to pass along. 

 22 As I mentioned in the memo that I sent 

 23 previously, we did have a court meeting and talked

 24 about this, and unanimously our actives and seniors and 

 25 magistrate judges agree that we did not wish to go back 

TORREANO SHORTHAND REPORTING (408) 379-0900

47
 1 to the point-counterpoint rule that we did have in the 

 2 past.

 3 I didn't manage to get you my written 

 4 testimony in time. I have written it out and I will 

 5 e-mail it to you. I won't go into it all at this point 

 6 because a lot of the points have been covered, but it 

 7 will be available.

 8 As I mentioned, we had the local rule from 

 9 1998 until 2002, which was about 15 years. I started 

 10 in '93. So I had, I guess, a few years under that

 11 practice requiring a point-counterpoint statement. And 

 12 the way it worked in our district was the attorneys 

 13 would file first a point counter -- a point and then a 

 14 counterpoint statement of numbered paragraphs and then 

 15 they would file a brief which would contain again a 

 16 statement of facts and the legal argument. We had a 

 17 page limit for the briefs, which included the facts and 

 18 the legal argument, but no page limit for the 

 19 point-counterpoint.

 20 Now, I suppose we could have had a page limit 

 21 for the point-counterpoint, but the real problem with 

 22 it is the duplication. If we have point-counterpoint 

 23 and then a statement of facts, it's duplicative. We're 

 24 reading the things twice. We can't have only one and 

 25 not the other because the point-counterpoint is not a 

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48
 1 good way of telling a story, particularly if you're 

 2 trying to include only material undisputed facts and 

 3 you're not including the background facts. 

 4 You're not including facts that aren't 

 5 material, but you need to know them because you can't 

 6 understand what happened if you don't. Or perhaps

 7 facts that aren't disputed, the dispute doesn't matter, 

 8 the party might argue, but the relative facts need to 

 9 be there or you can't understand the narrative.

 10 So you do need both, but yet they are 

 11 essentially saying the same thing, but the best way to 

 12 say it is in the narrative because that's the way that 

 13 you can understand it.

 14 JUDGE KRAVITZ: Judge Wilken, sometimes we've 

 15 heard, though, that -- and we've probably all had 

 16 experience with this, that lawyers sometimes don't

 17 actually come to grips with each other's points in

 18 these narratives and that at least the 

 19 point-counterpoint is a disciplining mechanism that -- 

 20 that I have to state a fact. I have to have support 

 21 for it and you can't abate it. You actually have to 

 22 accept it, dispute it and put the cite in there. 

 23 And did you find that that was -- that that 

 24 happened and that that was helpful or not -- or there 

 25 was more to handle? 

TORREANO SHORTHAND REPORTING (408) 379-0900

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 1 JUDGE WILKEN: What I found -- we changed our 

 2 rule in 2002. So from 2002 to now we've been doing it 

 3 the other way. What I found is that what you point out 

 4 can be done in statements of fact because what we do 

 5 require, and this rule could require as well, is that 

 6 the statement of fact be that every point be supported 

 7 by a citation to the record.

 8 JUDGE KRAVITZ: I see.

 9 JUDGE WILKEN: So the parties file their 

 10 declarations, their depositions, their -- excerpts, 

 11 their excerpts of discovery, and then a statement of 

 12 facts, each sentence or each one that -- with any kind 

 13 of possibility of being disputed contains a citation so 

 14 you can go and check it. 

 15 The other side, because its counter statement 

 16 of facts in a narrative format, and they darn well

 17 better address all those points because if they don't, 

 18 it's going to be pointed out in the reply and we're 

 19 going to notice it. So the opposing statement of facts 

 20 is the same way. It has all the citations and you can 

 21 compare both stories side by side, but each is a 

 22 narrative. Each is a story that's understandable. 

 23 In the reply then the moving party can come 

 24 back and say, hey, I pointed out this fact and you'll 

 25 notice that there was no citation to dispute that 

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 1 fact. 

 2 JUDGE KRAVITZ: And you can accept that fact 

 3 and deem it, in effect, admitted at that point or 

 4 accepted? 

 5 JUDGE WILKEN: Right. 

 6 JUDGE BAYLSON: I think every judge would 

 7 agree that point-counterpoint does not work for every 

 8 single case. Why is it not adequate to give the judge 

 9 the power to excuse the requirement in this specific 

 10 case?

 11 JUDGE WILKEN: Well, what I would do, I'm 

 12 afraid, is excuse it in every case, and I think a lot 

 13 of people would. To me the answer to that is it's

 14 easier to start from the default of the simple and move 

 15 to an added requirement when needed than to start with 

 16 a default of the more complicated and move to a default 

 17 of the less complicated. 

 18 So that would be the way I would foresee it 

 19 would be to have the rule be more simple and not 

 20 require that, but to have judges in the individual

 21 complex case, who find that useful, order in that 

 22 particular case rather than the contrary. 

 23 JUDGE BAYLSON: Do the lawyers in your 

 24 district with this rule that they must give pinpoint 

 25 citations, do they always follow that? 

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 1 Well, let me rephrase the question. If it's 

 2 not followed, do you give them another chance or do you 

 3 just impose the penalty of non-compliance, whatever 

 4 that may be? 

 5 JUDGE WILKEN: We generally in our district do 

 6 have oral argument. So I would probably say, "You made 

 7 this point in your brief, but you had no citation. Is 

 8 that in the record somewhere? Where is it?" 

 9 And then otherwise it would be case by case. 

 10 If I thought it was a meritorious case and it would be 

 11 form over substance not to give them a chance to submit 

 12 something after the hearing, I might do that. If I 

 13 think it's a weak and frivolous case, I might take

 14 advantage of that failure to grant summary judgment. 

 15 The person that it's hardest on, and I don't 

 16 mean by plaintiff and defendant, but the non-moving 

 17 party, I think, has the harder time of it with the

 18 point-counterpoint because the moving party can have 

 19 the list of facts in the order it likes and have the 

 20 facts that it wants. The way Rule 56 would require the 

 21 opposing party to oppose it is by going point by point 

 22 and then if the opposing party has other things it

 23 wants to say, it has to say them at the end. 

 24 So the opposing party's additional points that 

 25 it thinks are important are stuck at the end and they 

TORREANO SHORTHAND REPORTING (408) 379-0900

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 1 are sort of out of order. They are out of context. 

 2 It's not as understandable a narrative.

 3 So I think that it's particularly hard on the 

 4 opposing party to express something that's meaningful 

 5 and easy to understand and read.

 6 JUDGE ROSENTHAL: Do you find yourself needing 

 7 to on a case-specific basis exempt or -- cases from the 

 8 rule that you have now or is it flexible enough that 

 9 it -- all the cases seem to be able to operate within 

 10 it? 

 11 JUDGE WILKEN: The rule we have now, of 

 12 course, is no point-counterpoint. 

 13 JUDGE ROSENTHAL: Right. 

 14 JUDGE WILKEN: So, yes, that is very 

 15 flexible. It's your basic free statement of facts, 

 16 argument of law.

 17 I suppose if someone wanted to, they could 

 18 order a point-counterpoint. I never have, but we don't 

 19 need -- we haven't felt the need to exempt anyone from 

 20 that particular format.

 21 JUDGE ROSENTHAL: Does your rule specify that 

 22 the brief has to have a statement of facts section with 

 23 pinpoint citations followed by the argument? 

 24 JUDGE WILKEN: Yes. And yours could as well. 

 25 But you asked a question at the beginning what could be 

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53
 1 done in the proposed rule to make it responsive to our 

 2 difficulties with it, and I think really it would be 

 3 quite easy just to cut out the point-counterpoint part 

 4 but leave the improvements on the timing of it and on 

 5 the briefing of it and on the factual citations. 

 6 Because that part comes in in a later paragraph and 

 7 that could stay but simply be applied to the narrative 

 8 statement of facts of the point-counterpoint. 

 9 JUDGE BAYLSON: Do you think judges, yourself 

 10 or your judges or judges generally would have an 

 11 objection to the national rule of having a requirement 

 12 that briefs contain pinpoint citations? 

 13 JUDGE WILKEN: Oh, not at all. I think that's 

 14 necessary. I think that's preferable for sure, yes. 

 15 Yes? 

 16 JUDGE HAGY: Does your rule specifically 

 17 provide that if a party fails to respond to a fact that 

 18 you deem material, that it will be deemed material or 

 19 deemed -- excuse me, deemed admitted or deemed 

 20 undisputed? 

 21 JUDGE WILKEN: It doesn't actually say that, I 

 22 don't think, but that's kind of the default. If 

 23 someone says something and you don't respond to it, 

 24 certainly the argument in the reply would be, "My 

 25 opponent didn't respond to this. So you have no choice 

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 1 but to agree with me that it's true because I had a 

 2 cite and they didn't."

 3 JUDGE HAGY: So you have no objection to 

 4 specifically letting the litigants know if they don't 

 5 respond it could be deemed undisputed? 

 6 JUDGE WILKEN: I don't see a problem with that 

 7 as long as it's supported by a citation. If you just 

 8 say it -- 

 9 JUDGE HAGY: No. If one supports it and the 

 10 other doesn't respond. 

 11 JUDGE WILKEN: But, yes, I think it would be 

 12 perfectly reasonable to say if someone has a statement 

 13 of facts supported by admissible citations and no one 

 14 responds to it, that one would take that statement of 

 15 fact as true unless it were frivolous or something.

 16 I did want to answer, though, Professor 

 17 Marcus's question on inferences. I think that the

 18 inference problem is another problem of 

 19 point-counterpoint. Because I suppose it's a matter of 

 20 semantics, but one might argue that an inference is not 

 21 a fact. So if you're having a point-counterpoint 

 22 statement and you're having facts, you know, light red, 

 23 car approaches, you couldn't put in that and from this 

 24 we infer that thus and such happened. 

 25 And yet in order to understand the narrative, 

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 1 in order to understand what's really happening, you 

 2 need to point out the inferences. 

 3 So, again, either your point-counterpoint 

 4 wouldn't really be facts if it included inferences or, 

 5 if it were construed to mean that you can't propose 

 6 inferences in your point-counterpoint, then they 

 7 wouldn't be there and you'd again have to read the

 8 facts to even have any kind of understanding of what 

 9 was trying to be said in the case. So I do think the 

 10 inference is -- raises the problem.

 11 JUDGE KOELTL: Judge, did you change your rule 

 12 in 2002 because the lawyers through your lawyers 

 13 committee found it a problem? Or did you change it 

 14 because the judges thought there was a problem in 

 15 administering it? 

 16 JUDGE WILKEN: My recollection is mainly it 

 17 was judge driven. I don't recall hearing a lot of

 18 complaints from lawyers. One of the complaints was 

 19 from me because I found it -- I would always read 

 20 them. I would see these statements of 

 21 point-counterpoint and the statements of fact and I 

 22 knew they were going to say pretty much the same thing, 

 23 but I was sort of -- felt like, oh, well, if we're

 24 making them file these things, I better read them. And 

 25 I was finding myself reading the same thing twice. So 

TORREANO SHORTHAND REPORTING (408) 379-0900

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 1 it was mine and others of our judges I think that -- 

 2 JUDGE KRAVITZ: Do you have a sense as to how 

 3 the bar has reacted to the rule change? 

 4 JUDGE WILKEN: We haven't had any complaints. 

 5 JUDGE KRAVITZ: At least to you.

 6 JUDGE WILKEN: Pardon? 

 7 JUDGE KRAVITZ: At least to you. Right? 

 8 JUDGE WILKEN: I'm still on the local rules 

 9 committee. So I would hear about them if we had them.

 10 So we -- we agree with the national 

 11 uniformity. I'm very sympathetic to that. We have -- 

 12 being in the district we're in, we have lawyers from 

 13 all over the country practicing before us. Lawyers 

 14 that we know that have offices here practice all over 

 15 the country and complain to us about lack of 

 16 uniformity. 

 17 So we're very sympathetic to that and very 

 18 much in agreement with it, but, again, I feel that the 

 19 simpler to be supplemented with the more complex is a 

 20 better way to go than starting with the more complex 

 21 and having to default back to the simpler. 

 22 So that would be our recommendation. I don't 

 23 want to repeat what others have said, but if you have 

 24 other questions, I'd be happy.

 25 JUDGE KRAVITZ: Thank you very much, Judge 

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57
 1 Wilken.

 2 JUDGE WILKEN: Thank you.

 3 JUDGE KRAVITZ: That was very helpful.

 4 Well, it's important to hear from judges, but 

 5 it's also important to hear from practitioners as well 

 6 since you all have to live with these rules. And the 

 7 first practitioner up is Michael Nelson. 

 8 Welcome, sir.

 9 MR. NELSON: Thank you. Thank you, Judge 

 10 Kravitz. Good morning, committee members.

 11 I guess it's unusual for me to follow four 

 12 judges who all seem to be somewhat uniform in their 

 13 dislike for 56(c) and this point-counterpoint. 

 14 Unfortunately, I think I disagree with some of what 

 15 they are saying, although I'm really not sure I 

 16 understand what the problem is. 

 17 In a motion for summary judgment there is a 

 18 statement of facts offered by the movant and then those 

 19 facts are agreed to or not. That has to happen in the 

 20 process. I'm not sure why the new version of Rule 56 

 21 makes that any more complicated. And as I understand 

 22 the process and division by this rule, there will be a 

 23 statement of facts which people have to argue about or 

 24 submit to.

 25 I just had a case involving forgery where we 

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 1 said, in essence, this document is fraudulent and we 

 2 made a statement and pointed out the document. They 

 3 had to respond to that. They made a lot of statements 

 4 about the document, but in the end they couldn't rebut 

 5 the fact that it was a forgery. It became the 

 6 foundation for the motion for summary judgment. That 

 7 just has to happen. 

 8 So from the standpoint of the concern that the 

 9 judges have expressed and others have expressed about 

 10 this is now going to create a lot of work, I just don't 

 11 see it.

 12 JUDGE KRAVITZ: I think the point that I was 

 13 hearing today that I hadn't focused on before is that 

 14 there's a -- we have page limits on briefs and it's a 

 15 disciplining thing. We don't have page limits or 

 16 number limits on statements of material fact and I

 17 think what we're hearing today is that those sometimes 

 18 grow to gargantuan numbers and -- 

 19 MR. NELSON: I, too, was astounded by form 89 

 20 allegations, 300 pages of it. But if you go right now 

 21 to the proposed rule on case-specific procedures, the 

 22 procedures the subcommittee don't see apply unless the 

 23 court orders otherwise. I think this all comes down to 

 24 case management. 

 25 And on very complicated cases with a lot of 

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 1 complicated legal issues you're probably going to have 

 2 briefs that are much more detailed in requirement, but 

 3 I think the courts on the front end with some of this 

 4 has looked at that with latitude that's already in this 

 5 proposed rule.

 6 So I didn't want to address that. My primary 

 7 purpose to be here today is to stand up strongly for 

 8 use of the word "must." Quoting from the Liberty Lobby

 9 case, "Petitioner suggests and we agree that this 

 10 standard mirrors the standard for a directed verdict on 

 11 the Federal Rules of Civil Procedure 15(a), which is 

 12 that the trial judge must direct the verdict if under 

 13 the governing law there can be but one reasonable 

 14 conclusion as to the verdict."

 15 Now, I know that case is cited by others for a 

 16 proposition that says the courts still have 

 17 discretion. Okay. Well, then we need a rule. Does 

 18 the court have discretion or is the court obligated to 

 19 award when it's appropriate and just and there's no 

 20 undisputed facts? 

 21 And I think what's also at work here is courts 

 22 are struggling or you folks are struggling with how 

 23 courts manage cases. There's a lot of latitude in

 24 these rules, in the proposed rules.

 25 In addition to the latitude of changing the 

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 1 procedure there's latitude to consider other materials 

 2 in the record. There is latitude to allow time to

 3 obtain additional discovery, issue any other 

 4 appropriate order, afford an opportunity to respond. 

 5 These are all things courts can do as it manages the 

 6 summary judgment process.

 7 But if there are no undisputed facts on a very 

 8 important issue, I think courts should or must, better 

 9 said, be required to give the relief sought by the

 10 movant. And to say the rule should --

 11 JUDGE KRAVITZ: Have you had much experience 

 12 with judges saying that you're entitled to summary

 13 judgment, but I'm going to exercise my discretion not 

 14 to give it to you? 

 15 MR. NELSON: They never say it that way, of 

 16 course, and that's the problem.

 17 JUDGE KRAVITZ: They probably wouldn't say it 

 18 that way even if the rule said "must." Right? 

 19 MR. NELSON: That's right. They find some 

 20 issue that needs to be tried, but at the very least we 

 21 would at least have a clear standard. It's not clear 

 22 right now.

 23 The other thing I'd like to leave you with is 

 24 this uniformity issue. 

 25 JUDGE BAYLSON: Well, excuse me.

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 1 MR. NELSON: Sure. 

 2 JUDGE BAYLSON: When you say the standard is 

 3 not clear, one of the things that we've been avoiding 

 4 is making any changes in any substantive standard of 

 5 law. That's for the Supreme Court or Congress to do, 

 6 not our committee. 

 7 For years, the rule said "shall." The last 

 8 year and a half it said "should." We haven't tinkered 

 9 with the standard at all. So if the standard is 

 10 reviewed, that seems to me to be a different problem, 

 11 and -- because one thing we don't want to do is change 

 12 a verb and have lawyers argue that we're changing the 

 13 standard. 

 14 MR. NELSON: But we've already started to see 

 15 things like negative discretion written about some of 

 16 these documents. So the court has a right to dismiss a 

 17 case but has the negative discretion not to order 

 18 that. That's in some of the writings that have been 

 19 submitted. 

 20 You have the discretion, notwithstanding the 

 21 fact that there's no dispute or there's no real dispute 

 22 on the facts, this case just needs to get tried. And 

 23 that's absolutely been written in here and I do think 

 24 the board -- the rule should say "must" to clarify

 25 that, no, if there's no undisputed facts, it should be 

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 1 awarded -- summary judgment should be awarded to the 

 2 movant.

 3 There's seven or eight different I'll call 

 4 them rationales for giving the court latitude in the 

 5 committee's report. One I'll call the instant replay 

 6 where, "yeah, I know I read it in the record, but I 

 7 just want to see it." There's a cost benefit analysis 

 8 of, "well, it's really costly to take these things up 

 9 on appeal only to get them handed back down to us." 

 10 Yeah, but do you know how expensive it is to 

 11 get a case ready for trial and take videos of experts 

 12 and fly people all over the country and get witnesses 

 13 together and prepare four sets of exhibits and marshal 

 14 the resources to try a case? 

 15 And then there's this other argument that, 

 16 well, why should we grant a motion for summary judgment 

 17 if there's still other issues to be tried on a similar 

 18 claim and we've got to hear them anyway. 

 19 Most of my work, a lot of my work is insurance 

 20 bad faith, and if you use it as a breach of contract, 

 21 there's a bad faith component to it. Well, it's the 

 22 same case, but we usually dispense with the bad faith 

 23 when appropriate and then try the breach of contract. 

 24 So I don't see the strength of that argument. 

 25 There's one in here that I really have to take 

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 1 up with you, and that's the trial pressures. You know, 

 2 if we have to consider these motions, and we may have 

 3 to grant them, that's going to run us into our own

 4 trial calendars and that may necessitate putting trials 

 5 off as opposed to "I can't grant the motion for summary 

 6 judgment so we'll try the case because you're out of 

 7 time." 

 8 It just seems to be a little bit of a 

 9 backwards look at that perspective. It's really 

 10 expensive to bring these cases to trial, and motions 

 11 for summary judgment should be and do narrow these

 12 cases very appropriately when amended by courts.

 13 On uniformity, briefly. I'm handling a case 

 14 right now in district court where before I can file a 

 15 motion for summary judgment I have to send a letter to 

 16 the judge outlining what my motion for summary judgment 

 17 is. The party opposing it has to then write a letter. 

 18 And then if the court sees the wisdom in the filing of 

 19 that motion will grant permission to file the motion 

 20 for summary judgment. 

 21 In another state, this state is New York, 

 22 there seems to be some cross-pollination between this 

 23 concept of attorney affidavits that are used all the 

 24 time, but you don't see those in other jurisdictions. 

 25 And those affidavits can run on for weeks.

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 1 So we absolutely have to have a uniform set of 

 2 rules. And I practice nationally. I know I can 

 3 probably speak for a lot of the folks that I've 

 4 practiced with in saying if you give us some general 

 5 standards we can all make this a lot easier on the

 6 practitioner side.

 7 Thank you very much.

 8 JUDGE KRAVITZ: Thank you, Mr. Nelson. I very 

 9 much appreciate -- oh. Mr. Marcus? 

 10 PROFESSOR MARCUS: Just one follow-up, if I 

 11 may, connected with uniformity and your first point on 

 12 point-counterpoint.

 13 I'm assuming that you appear in jurisdictions 

 14 that have various kinds of arrangements about whether 

 15 one has to do a point-counterpoint or not. Do you

 16 approach motions for summary judgment differently in 

 17 those different districts and, if so, how? 

 18 MR. NELSON: It's form over substance as far 

 19 as I'm concerned. There's three components to this 

 20 motion. There is the law, there is the argument, and 

 21 then there's the facts. And it's up to the parties to 

 22 hassle about the facts and the court looks there and 

 23 says, yeah, the record's there or not. Ultimately this 

 24 all plays out in the argument section of whatever 

 25 document you're calling it.

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 1 JUDGE WALKER: So I gather then that you don't 

 2 think you really need a separate statement of disputed 

 3 or undisputed facts? 

 4 MR. NELSON: Oh, I think it makes it cleaner, 

 5 but do you have to have a title that calls it a 

 6 separate statement of facts? No. I'm hearing here 

 7 some judges say let's put it in the briefing, but it's 

 8 still going to be a section of statement of undisputed 

 9 facts. Why not have a rule that says three components, 

 10 argument, law, statement of facts? 

 11 JUDGE WALKER: Let me follow up on another 

 12 point and that is your "must" versus "should" point 

 13 with Michael Baylson. Do you perceive situations in 

 14 connection -- in connection with motions to dismiss in 

 15 which a party is entitled to have the claim dismissed 

 16 but the judge refuses to dismiss it? 

 17 MR. NELSON: Yes. 

 18 JUDGE WALKER: You do find that? 

 19 MR. NELSON: Yes. I could give you one clear 

 20 example.

 21 JUDGE WALKER: Well, to what do you attribute 

 22 that? 

 23 MR. NELSON: Frankly, in this particular case, 

 24 it was a national antitrust case involving four of the 

 25 largest automobile writers in the country. Motions to 

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 1 dismiss should have been granted. They were denied. 

 2 Motions for certification were granted. We went to the 

 3 Eleventh Circuit and said this should not have been 

 4 certified on an interlocutory 23(f) appeal. It should 

 5 have been certified. 

 6 And the Eleventh Circuit said in essence, 

 7 you're right, this claim has no merit. In essence, it 

 8 should have been dismissed on a motion to dismiss stage 

 9 notwithstanding the fact that armies of lawyers 

 10 litigated this case for about four years. So it should 

 11 have -- the motion to dismiss should have been 

 12 granted. 

 13 JUDGE WALKER: How was that other than a 

 14 disagreement amongst the judges who were involved as to 

 15 the application of the standard for dismissal?

 16 MR. NELSON: I'm not sure I understand your 

 17 point.

 18 JUDGE WALKER: Well, is there something about 

 19 the procedure governing motions to dismiss, that is in 

 20 Rule 12, that does not give a standard by which a court 

 21 is to grant or to deny the motion to dismiss that 

 22 requires that the standard of the court's action be 

 23 included when it comes to summary judgment?

 24 MR. NELSON: Well, obviously at the pleading 

 25 stage you have to accept all the facts plead as true. 

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 1 That's really the big difference between that and a 

 2 motion for summary judgment. So you accept those 

 3 facts. And then assuming you have to go past the 

 4 motion to dismiss stage, then, of course, you get into 

 5 factual discovery, but it's the same issue. Okay. Now 

 6 the factual record's developed. Is there a legal 

 7 claim? 

 8 JUDGE WEDOFF: Mr. Nelson, I'm a bankruptcy 

 9 judge in Chicago and I've had experience with a number 

 10 of trials that are very different from the ones that 

 11 you've described, trials that have a couple of local 

 12 witnesses and are over in an hour. In the context of 

 13 trials like that, can you see that it might be valuable 

 14 for a judge to have the opportunity not to go through 

 15 extensive briefing and decision-making on a motion for 

 16 summary judgment and simply let the case be tried? 

 17 MR. NELSON: If it's just a couple hour deal, 

 18 I can certainly understand why you'd be more inclined 

 19 rather than get into the paper record. But at the same 

 20 point, I do think if it's a slam dunk on paper, 

 21 shouldn't a party not -- party who's entitled to 

 22 judgment not be forced to go through the expense of 

 23 trial for what would be a frivolous lawsuit? 

 24 JUDGE ROSENTHAL: If it's a slam dunk, who 

 25 could argue? 

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 1 JUDGE KRAVITZ: Judge Colloton.

 2 JUDGE COLLOTON: Let me clarify Chief Judge 

 3 Walker's question and maybe rephrase slightly. I think 

 4 maybe the question was given that Rule 12 for motions 

 5 to dismiss does not say the motion must be granted if 

 6 it's warranted, why do you think it's important that 

 7 Rule 56 should say the motion must be granted? 

 8 MR. NELSON: Because it's a matter of law. 

 9 Parties are entitled to legal relief when they are

 10 entitled to it.

 11 JUDGE COLLOTON: But I think the question, 

 12 though, is isn't that also true with respect to Rule 12 

 13 even though the rule doesn't say it? 

 14 MR. NELSON: I absolutely agree with that, 

 15 though, too, that if a party's entitled to the relief 

 16 of having litigated an unmeritorious legal claim, they 

 17 should get that as a matter of right.

 18 JUDGE KRAVITZ: But I think the point that 

 19 they are trying to make with you -- through you is -- 

 20 you need to hit the ball back is the rule. 

 21 Rule 12 doesn't use the word "must" but has a 

 22 legal standard and that legal standard is out there and 

 23 judges apply it or don't, and there are those that have 

 24 done it correctly or incorrectly. Whereas, this whole 

 25 debate about "should" and "must" is a debate about

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 1 whether we put the standard in the rule itself as 

 2 opposed to doing the case law.

 3 MR. NELSON: I completely understand the 

 4 question. I just must not be responding clearly. I 

 5 think, in essence, even though the wording in the 

 6 standards may be different, I think the end result is 

 7 still the same -- the court should take that case away 

 8 from the plaintiff.

 9 JUDGE COLLOTON: But if I could just make one 

 10 more point through you. As I read your letter, you 

 11 were expressing concern that for many years Rule 56 did 

 12 include a standard, unlike Rule 12. It said "shall be 

 13 rendered," and you say the Supreme Court in the Celotex

 14 case said that is a mandatory term. And you have 

 15 concern that changing it to "should," which the 

 16 committee note says is a discretionary term, caused a 

 17 change in the law. Whereas, Rule 12 has just been out 

 18 there with judge-made law up to the present.

 19 MR. NELSON: Even with --

 20 JUDGE COLLOTON: Is that an accurate 

 21 characterization of your concern? 

 22 MR. NELSON: I think that's an adequate 

 23 characterization. I think "shall" is just going to 

 24 create more and more mental leeway with the judge. 

 25 JUDGE KRAVITZ: Okay. Thank you very much. 

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 1 What we're going to do is press forward and 

 2 take a break around 10:30. So those of you who are 

 3 calculating time, keep that in mind. 

 4 Mr. Jackson? Welcome, sir. 

 5 MR. JACKSON: Thank you. Glad to be here. I 

 6 appreciate being here and having the opportunity on 

 7 this important rule change, which you're 

 8 contemplating. 

 9 Looking at the lists of witnesses that are 

 10 here today and that were in San Antonio and that were 

 11 in Washington, DC, it's very clear that both the bench 

 12 and the bar take this activity very seriously. 

 13 I think it might also be nice if you could 

 14 supplement the views from practitioners and the judges 

 15 with big consumers of court resources across the United 

 16 States. I am senior vice-president and general counsel 

 17 of State Farm Mutual Automobile Insurance Company, and 

 18 I've had the honor of holding that position for all of 

 19 seven months now. 

 20 Ten years prior -- for the ten years prior, 

 21 however, I was the chief litigation officer of State 

 22 Farm. I have been there 21 years, and I have a former 

 23 life of nine years in a private law firm where I was a 

 24 partner specializing in civil litigation. 

 25 It is important to us to look at summary 

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 1 judgment. We had a case not recent -- not too long ago 

 2 where a judge was asked to certify a 48-state class 

 3 action. Eventually we filed a well-thought-out motion 

 4 for summary judgment. It was denied. It went to 

 5 verdict. Bad verdict for the company. We appealed 

 6 it. Eventually the Illinois Supreme Court ruled as a 

 7 matter of law the case had no merit and used the 

 8 reasoning in our motion for summary judgment. That 

 9 came in a state with the "shall" in the rule. 

 10 So we raised some questions in preparation to 

 11 coming here today to have a dialogue with you. We went 

 12 back and looked at the last three years of litigated 

 13 cases involving State Farm or any of its affiliates, 

 14 and these would be first-party lawsuits, not the auto 

 15 accident cases, slip and fall premises cases that occur 

 16 all the time, and I'll come back to those in just a 

 17 minute.

 18 So we look at those cases from a three-year 

 19 period, 11/20/05 to 11/20/08. And what we found was 

 20 interesting. First of all, there were about 6,500 of 

 21 those cases. 82 percent of them were in the state

 22 court, as you'd expect, and 18 percent were in the

 23 federal court. We only had a full summary judgment 

 24 rate of resolution of 3 and a half percent. It was 

 25 actually lower in federal court than in state court. 

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 1 All of the applicable rules in state court and 

 2 in federal court during this survey used the word 

 3 "shall" except for Pennsylvania. And, by the way, in 

 4 Pennsylvania, we didn't see the same rate of summary 

 5 judgment that we see in the other states, but with this 

 6 sample it's probably not fair to draw too much from 

 7 that. 

 8 You can also look at what we do when we look 

 9 at various strata. Getting back to the conversation 

 10 that you just had with the gentleman before me, 25

 11 percent in that first layer of cases, those cases were 

 12 resolved under either voluntary or other dismissals 

 13 before a summary judgment case. Three and a half 

 14 percent of our cases were resolved by summary 

 15 judgment. 

 16 The third layer or stratum, the biggest one, 

 17 as you would expect, 70 percent of our cases settle. 

 18 And less than 2 percent go to verdict. And so you can 

 19 step back and you can ask yourself, if all of these 

 20 cases were resolved in a universe of rules that used 

 21 the word "shall," why would you be bothering with the 

 22 change of the rule when we went to "should." 

 23 And that's a fair question and I'll attempt to 

 24 answer that in just a second.

 25 The types of cases that we looked at ran the 

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 1 gamut from simple breach of contract cases, bad faith 

 2 litigation, even antitrust allegations, employment

 3 litigation and cases seeking class certification.

 4 When we look at the state laws that are used 

 5 to govern summary judgment practice, they tend to 

 6 follow the federal rule. And if the disposition rate 

 7 for summary judgment is so low when the rule said 

 8 "shall," we believe that the rule when it reads 

 9 "should" will probably result in fewer summary 

 10 judgments over time.

 11 Second, because the states tend to follow the 

 12 federal rules, we expect over time if the rule is not 

 13 changed that the states will follow that practice.

 14 Third, as I noted at the beginning, when a 

 15 motion for summary judgment that has merit is not 

 16 granted, there is an increased cost of litigation -- 

 17 I'll state the obvious -- five times that cost, at

 18 least according to this little survey that we did.

 19 Also, those costs that go into the litigation 

 20 system, they come out on the other end in the form of 

 21 higher goods and services in America. For State Farm 

 22 those costs are factored into our insurance rate. We 

 23 handle thirty-five to forty thousand claims a day. 

 24 Those claims are handled hopefully efficiently, 

 25 quickly, and paid when owed. 

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 1 But our rates -- they look at those claims and 

 2 we try to project how much it will pay in resolving 

 3 these claims, and that includes litigation costs. So 

 4 for us and particularly our policyholders -- I want to 

 5 come back to that -- at any one time in a day we have 

 6 120,000 lawsuits where our policyholders are the 

 7 defendants. 

 8 Yes, sir?

 9 PROFESSOR MARCUS: I'm sorry to interrupt, but 

 10 just one question. It's something you didn't mention. 

 11 Did you perchance compare your costs of making 

 12 summary judgment motions in places where there was

 13 point-counterpoint requirement and places where there 

 14 was none? 

 15 MR. JACKSON: Great question. No, we did 

 16 not. We looked at just this other issue. We could 

 17 probably get better granularity and look at that. And 

 18 so we'll see what we can do and, if I can get in time 

 19 to respond to you by the end of the month, I'm not

 20 sure. We'll look at the submissions and we'll see what 

 21 we can find out. Thanks for that question.

 22 PROFESSOR COOPER: This is Ed Cooper. In the 

 23 same vein, when you speak of 3 and a half percent 

 24 summary judgment, does that mean total case 

 25 termination? 

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 1 MR. JACKSON: Yes.

 2 PROFESSOR COOPER: Do you have any figures on 

 3 partial grants? 

 4 MR. JACKSON: We can get that information. We 

 5 had a few of those in this study of 6,500. There 

 6 were -- there were some partial summary judgments, but 

 7 the issue for us was we still maintained those cases 

 8 have to be litigated to a conclusion. And when you run 

 9 that out there still is a cost. But that is something 

 10 that would have to be factored in in any kind of 

 11 empirical review of cases resolved by summary 

 12 judgment. 

 13 One thing I also wanted to mention is that -- 

 14 JUDGE KRAVITZ: To follow up on your data, 

 15 most of your cases are being resolved by settlement, 

 16 and the settlement comes after the decision on summary 

 17 judgment and before? 

 18 MR. JACKSON: As a general rule, yes. We 

 19 don't file motions for summary judgment in every case 

 20 because sometimes, believe it or not coming from an 

 21 insurance executive, we don't have a case to file a 

 22 motion for summary judgment in. But in those cases 

 23 where we did that is what we found.

 24 JUDGE KRAVITZ: Okay.

 25 MR. JACKSON: The other thing that I wanted -- 

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 1 yes? 

 2 JUDGE KOELTL: Have you done any sort of cost 

 3 benefit analysis? If you were only getting 3 and a 

 4 half percent of the motions granted, why from a cost 

 5 benefit analysis would you make the motion rather than 

 6 attempting to settle the case or tell the party on the 

 7 other side the case doesn't settle, we'll go to trial? 

 8 MR. JACKSON: Great question. We had 28 class 

 9 actions filed after Hurricane Katrina. We've won all 

 10 of them because they were all seeking basically the 

 11 same relief, coverage. And if we lose the summary

 12 judgment motion in one of those courts, when we're

 13 looking at the contract and all of the -- all of the 

 14 effects that flow from an adverse ruling on the 

 15 contract, we were not going to settle that case until 

 16 we heard from the Fifth Circuit or the Supreme Court of 

 17 Mississippi or Louisiana. 

 18 So there always is a question as to whether or 

 19 not you cut your losses and settle. The fact that we 

 20 settle so many cases we obviously factor that in, but 

 21 it would depend on the type of case and what the issue 

 22 is.

 23 If I can, I'll conclude. With 120,000 

 24 lawsuits involving our policyholders themselves, and 

 25 these are traditional third-party cases and they are 

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 1 traditionally handled in the state courts, there is a 

 2 real economic impact on them if their cases are ripe 

 3 for summary judgment and then they have to proceed

 4 with -- this is not a plea to grant more summary 

 5 judgments. It's a plea to consider what the effects -- 

 6 real-world effects might be if more and more rules

 7 switch to a "should" as opposed to a "must." 

 8 As we look at those cases, we conclude that 

 9 it's in all of our interests here today in this 

 10 wonderful courtroom that we have a strong property

 11 casualty industry in America. Because who pays for a 

 12 lot of the defense of these cases, the settlements of 

 13 these cases and the judgments on these cases? 

 14 So what we think is at the end of the day a 

 15 rule that makes good sense is efficient and fair and we 

 16 proposed it in the letter to you again today. Please 

 17 take another look at the use of the word "should" and 

 18 consider how it might be changed to "must" or some

 19 other identification. 

 20 MS. BRIGGS: Can I ask a quick question? In 

 21 your statistics you did say that 3 and a half percent 

 22 of the cases were resolved conclusively in summary

 23 judgment. In what percentage overall of the cases are 

 24 you even filing motions? 

 25 MR. JACKSON: I'll have to go back and take a 

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 1 look at that. We've got 224 summary judgments out of 

 2 6,500. I just don't know the answer to that as I stand 

 3 here today.

 4 JUDGE HAGY: This is Chris Hagy. I take it 

 5 you don't have any objection to leaving the word 

 6 "shall" as opposed to the word "must" or going to 

 7 "should"? 

 8 MR. JACKSON: Personally I do not, but I 

 9 understand that there's other considerations as to

 10 whether that word is -- is more appropriate than "must" 

 11 or whether it causes more indigestion than changing it 

 12 to "must." 

 13 JUDGE BAYLSON: Can I just ask you. And I'm 

 14 not suggesting by asking this question that this is a 

 15 good idea, but I would just like your views on it. 

 16 Suppose that we were to propose that the rule 

 17 said "must" and then put a comma, "unless for good

 18 cause stated on the record," granting summary 

 19 judgment? 

 20 MR. JACKSON: That would be a step in the 

 21 right direction. That would be a step in the right 

 22 direction. 

 23 JUDGE BAYLSON: Thank you.

 24 MR. JACKSON: Any other questions or 

 25 comments? If not, I want to thank you again for this 

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 1 opportunity.

 2 JUDGE KRAVITZ: Thank you, Mr. Jackson. That 

 3 was -- we very much appreciated the empirical work that 

 4 you put into your data. And if you can massage it some 

 5 more and answer some of these questions by the end of 

 6 the month, that would be great. Thanks much.

 7 We're going to go right now to Mr. Dunne from 

 8 Sedgwick and then we'll pick up with Mr. Ross.

 9 MR. DUNNE: Thank you very much, Your Honor. 

 10 I appreciate it. 

 11 Let me start with Rule 56. Somebody suggested 

 12 that shouldn't it be the same as Rule 12, and the 

 13 answer to me is no. Rule 12 doesn't have any strict 

 14 standard and, therefore, you get less motions granted 

 15 under Rule 12. 

 16 And I'm a defense lawyer. I represent big 

 17 corporations and I want summary judgments granted and I 

 18 think in many instances they should be granted and I 

 19 don't think they are granted enough.

 20 JUDGE KRAVITZ: And when you say they are not 

 21 granted enough, are you saying that judges are denying 

 22 them but that they are acting on them or are you saying 

 23 that -- which we've heard where judges are essentially 

 24 pocket vetoing them, just letting the time go and 

 25 getting to trial and then saying, okay, we're going to 

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 1 try the case? 

 2 MR. DUNNE: You took my speech right away from 

 3 me. Because it depends on the judge. Different judges 

 4 in this room will do different things, but I suspect 

 5 none of you will do what some of the judges we see

 6 around the country do. Some of them are big believers 

 7 in the Seventh Amendment. They love the right to jury 

 8 trial. And if you give them an opportunity, they will 

 9 take everything to the jury. You can't get a 

 10 non-suit. You can't get a summary judgment. You can't 

 11 get a motion to dismiss. That's their philosophy. 

 12 I think their philosophy should be moderated. 

 13 I think I would if I would rule the world. 

 14 JUDGE KRAVITZ: That's in federal court or 

 15 state court? 

 16 MR. DUNNE: Both. It's both. And with 

 17 candor, more in state. It really is. I mean, federal 

 18 judges -- believe me, all of us in this room will do 

 19 anything we can to get in federal court. That's a

 20 given. But, but even getting to federal court doesn't 

 21 necessarily solve the problem, particularly depending 

 22 on judges who -- who don't like to work as hard as

 23 other judges. 

 24 And judges who don't like to work as hard as 

 25 other judges don't like to grant summary judgments. 

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 1 And I don't like to give them anything to hide behind 

 2 and I think if you take the "must" away and put in

 3 "should," you give it to them. I think it's too 

 4 difficult on the defendants.

 5 I really think -- I think what happens in this 

 6 room, you have a skewed representation of the 

 7 judiciary. You think every judge is going to be like 

 8 you. It isn't true out there. There are judges who 

 9 are much less competent, much less vigorous, much less 

 10 anxious in solving the problems of the litigants and 

 11 getting through the cases and they just don't want

 12 to -- their idea is "If I deny this, it will settle. 

 13 If I deny this, it will have to go to jury." They

 14 don't want to go to jury. They will settle, mediate. 

 15 You know, judges use the system as much as anybody

 16 else. 

 17 And we would like to make it more certain in 

 18 the system so that when I tell a client we're going to 

 19 file a motion for summary judgment, I have a better 

 20 idea of how we're going to do on that summary 

 21 judgment. And just -- I think I'm repeating myself. I 

 22 would sure love to have Rule 12 changed.

 23 JUDGE KRAVITZ: Well, we can put a "must" in 

 24 that -- 

 25 MR. DUNNE: That's what I'm saying.

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 1 JUDGE KRAVITZ: -- while we're at it.

 2 MR. DUNNE: Well, just a few more notes. In 

 3 many cases, particularly in federal court, and so the 

 4 cases are large and a lot of them are cross-actions and 

 5 a lot of them mass appeals and not granting the summary 

 6 judgment would be the equivalent of granting cert. I 

 7 mean, it's that big of a deal. It's a huge deal and 

 8 it's a huge swing in money when you deny summary 

 9 judgment. It's a huge swing when you grant it, but, 

 10 but for the types of people who are doing work in your 

 11 court, the summary judgment is the penultimate part of 

 12 the case.

 13 Point-counterpoint, just to comment on that. 

 14 This is totally my own position. If the judges want 

 15 it, happy to do it. I thought they wanted it. I 

 16 really did. I mean, so we were doing it like crazy and 

 17 getting good at it and efficient at it. And now we see 

 18 they don't want it, they don't read it. We're happy 

 19 not to do it, believe me. That's just me, but, I 

 20 have -- you know, I have a practice that's pretty 

 21 encompassing.

 22 Just Rule 26, disclosure of experts. I think 

 23 the changes are terrific. 

 24 Interesting. In the last six months I've had 

 25 two plaintiffs lawyers call me up and say, "hey, on 

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 1 experts can we have a stipulation," and usually the 

 2 stipulation is very similar to the changes in Rule 26. 

 3 So it's not just the defense bar. It's the bar. 

 4 And the problem is expert discovery -- and I'm 

 5 preaching to the choir, I think -- has become crazy. 

 6 For a corporation I go on -- at the outset of a case 

 7 the lawyer goes into the corporation and says, "I want 

 8 to talk to people who are knowledgeable about the facts 

 9 of this case." They don't want to have to list those 

 10 people as experts. They don't want to have to do 

 11 anything, but good practice requires you to do that. 

 12 What happens is if you start saying everybody 

 13 who's looked at the files is an expert, anybody who has 

 14 an opinion is an expert, then we have to start turning 

 15 over names that we're not ready to turn over, we don't 

 16 want to turn over. It creates a totally artificial 

 17 atmosphere in the corporation and it creates a totally 

 18 artificial atmosphere with respect to the testifying 

 19 expert. Because in order to have a testifying expert 

 20 who does a good job, you almost have to have a 

 21 consulting expert because you can't talk to the 

 22 consulting -- I mean, the testifying expert in a 

 23 sophisticated fashion. You can't say, "I think this is 

 24 a weakness. What do you think?" 

 25 All the things that the lawyers should do to 

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 1 get a great declaration and to prepare a good defense, 

 2 you're really stymied from doing this because you're 

 3 worrying about the collateral cross-examination of the 

 4 experts. And the truth is the collateral cross of an 

 5 expert is frequently the most effective thing in front 

 6 of a jury. The jury has no idea about the expert 

 7 statistics, you know, and all that kind of thing, but 

 8 they sure love the testimony about how much a lawyer 

 9 makes and how much he works for Safeway and all that 

 10 stuff. 

 11 Now, that's still going to be available, but 

 12 they go beyond that. And so I've had depositions in 

 13 which the plaintiffs lawyers, good plaintiffs lawyers 

 14 spend the whole four, five hours on the collateral. 

 15 "Well, what did Mr. Dunne tell you here? Did he write 

 16 that word? Is that your word or Mr. Dunne's word?" 

 17 And it goes on and on and on. 

 18 So, anyway, it -- it creates a huge problem 

 19 for us in just drafting the declarations. We need more 

 20 certainty as to who's an expert and who's not. We need 

 21 shorter depositions and that does it. I think you get 

 22 the same result. I think you get the same amount of 

 23 justice. I think the rule changes are good. 

 24 Thank you.

 25 JUDGE KRAVITZ: Thank you. 

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 1 Judge Walker?

 2 JUDGE WALKER: Let me ask you, Mr. Dunne. If 

 3 Rule 56 included the "must" language that you advocated 

 4 and you ran into one of those judges of the kind you 

 5 described that you were kind enough to except all of us 

 6 from, and that's appreciated, would you in the event 

 7 you were denied a summary judgment seek mandamus before 

 8 the Court of Appeals?

 9 MR. DUNNE: I do frequently. I do. It's a 

 10 hard way to go in the Court of Appeals.

 11 JUDGE WALKER: You do it now? 

 12 MR. DUNNE: I try to, yes. 

 13 JUDGE WALKER: When a judge denies a motion 

 14 for summary judgment that you think you're entitled to 

 15 judgment on you bring it to the Court of Appeals? 

 16 MR. DUNNE: I say, "Will you -- will you 

 17 certify this? Would you give me leave to grant?" Some 

 18 judges, if it's a close call, will actually do that.

 19 JUDGE KRAVITZ: Well, that's not mandamus. 

 20 MR. DUNNE: That's not mandamus. All right.

 21 JUDGE KRAVITZ: Certification. 

 22 MR. DUNNE: Certification. But that's a hard 

 23 way to go. I mean, one of the things we like about 

 24 Rule 23 in class actions now is you get the 

 25 interlocutory appeal, and that's very valuable to us.

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 1 But the one -- the problem with the "must" 

 2 versus "shall" or the "must" versus "should" is the 

 3 "should" is discretionary, much harder to get reversed 

 4 on appeal. And if you have the "shall" or the "must," 

 5 it's less discretionary and much easier to get reversed 

 6 on appeal. At least my feeling is that would happen. 

 7 JUDGE KRAVITZ: Thank you. 

 8 Mr. Marcus? 

 9 PROFESSOR MARCUS: If I could follow up.

 10 MR. DUNNE: Sure.

 11 PROFESSOR MARCUS: If it were changed to 

 12 "must," would that be a reason for you to look more 

 13 seriously at petitioning the Court of Appeals for 

 14 mandamus and not asking the district judge to certify 

 15 under 1292(b)? 

 16 MR. DUNNE: Now that you bring it up, yeah. 

 17 Probably, yeah.

 18 JUDGE KRAVITZ: Good idea, Professor.

 19 Thanks, Mr. Dunne.

 20 Ms. Ross?

 21 JUDGE KRAVITZ: I bet the weather is better 

 22 here than where you practice. 

 23 MS. ROSS: I couldn't believe how warm it was 

 24 when I got off the plane. 

 25 I'm Mary Massaron Ross. My practice is as an 

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 1 appellate lawyer. About half of it is in state court, 

 2 about the other half of it is in federal court. And in 

 3 that capacity I most often represent defendants, but I 

 4 represent plaintiffs in commercial cases generally. 

 5 And so I have experience, I think, with the rule from 

 6 the different sides, movant and opponent. 

 7 I'm here today to talk about Rule 56 and the 

 8 first point and to me the most important is to change 

 9 the language back to "must" because I think the 

 10 language, when it said "shall," was always understood 

 11 to be mandatory. Judges understood it to be 

 12 mandatory. State courts, and I'm from Michigan, and 

 13 our state in the wake of the Celotex trilogy adopted a 

 14 whole new process for summary judgment that made that a 

 15 much more useful tool for all the litigants and has 

 16 been very effective.

 17 When that word was changed from "shall" to 

 18 "should," it now conveys discretion, a hope, an 

 19 expectation, but not an obligation. And that's a major 

 20 problem.

 21 I submitted written comments, and I'm not 

 22 going to go through all the points that are in them, 

 23 but I did want to highlight and underscore a couple of 

 24 points. One is the human side of the equation.

 25 I think everybody in this room or most of the 

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 1 people in this room, we're all lawyers, we're judges, 

 2 we're advocates in courts. It's very easy to forget 

 3 how what we do is perceived by individuals, the 

 4 participants in litigation.

 5 When you try to explain to a client that there 

 6 isn't any genuine issue of material fact, that you've 

 7 brought your motion, that you've pointed out that this 

 8 defense or this claim should be dismissed, but 

 9 nevertheless the judge can deny it and then there's no 

 10 standard, that undermines respect for the rule of law. 

 11 And it really has a very detrimental effect 

 12 particularly for those litigants who are not 

 13 sophisticated consumers of legal services. And I think 

 14 that's something that we should all be concerned 

 15 about. 

 16 In addition, I wanted to just touch on the 

 17 costs of litigation. I'm sure the committee has heard 

 18 about the economic costs. I'd like to just mention the 

 19 emotional and psychological costs because I haven't 

 20 heard that talked about. And some of the clients that 

 21 I represent, particularly my local government clients, 

 22 those emotional costs can be very real.

 23 I think about, for example, jail officials 

 24 where a jail suicide may have happened. It is an 

 25 emotional event. It's a profoundly traumatic event. 

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 1 It's traumatic for the person who's suing in the wake 

 2 of the jail suicide. It's traumatic for the people who 

 3 are being sued. And the trial is going to relive that 

 4 entire experience. 

 5 If, indeed, there is triable issues of fact 

 6 under our federal constitutional standards for 42 USC 

 7 1983, then obviously that case should go to trial. On 

 8 the other hand, if there are not, that's a case where 

 9 absolutely that motion should be granted. And I think 

 10 that kind of cost should be taken into account.

 11 I wanted to also touch on the partial summary 

 12 judgment issue because that's been raised.

 13 As an appellate lawyer, I see from time to 

 14 time cases where there are what I would call an 

 15 aberrant result, a huge judgment in a type of case

 16 where that kind of judgment is very atypical and the 

 17 facts don't warrant it. And often those examples come 

 18 where the litigants and the trial court did not pare 

 19 away claims that should have been taken out of the mix, 

 20 and what ended up was a sort of generalized 

 21 presentation to the jury in which the jury's question 

 22 was sort of was this a good thing. And that's a 

 23 problem.

 24 The partial summary judgment is an absolutely 

 25 wonderful tool to pare away those claims so that what 

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 1 is left for the jury are the focused factual disputes 

 2 that juries are so wonderful at resolving.

 3 And let me just look -- I did want to comment 

 4 because the mandamus question became up again this

 5 morning and it came up I know in an earlier hearing. 

 6 And as an appellate lawyer one of the things that I do 

 7 very regularly is talk to trial lawyers both at my firm 

 8 and at other firms and talk to clients and explain why 

 9 they shouldn't take an appeal, and I'm pretty 

 10 successful at it.

 11 There are many times when litigants come in 

 12 and say, "This is a horrible discovery rule. I don't 

 13 know what the bench is thinking about. This is just 

 14 going to be awful." The same thing with the denial of 

 15 a motion for summary judgment. 

 16 The federal appellate courts have been very 

 17 uniform to say that mandamus is not a procedural 

 18 vehicle for circumventing the rule against piecemeal 

 19 appeals. The extraordinary writs are discretionary. 

 20 The appellate courts are very careful of their goal in 

 21 the system. 

 22 So I don't think that changing the language 

 23 back to a mandatory word, which it was for many, many 

 24 years, is going to create some kind of problem with 

 25 people rushing off to file mandamus actions. There's a 

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 1 lot of downside to that. It's expensive. It gets the 

 2 trial judge mad at you if you lose. And the appellate 

 3 courts are not likely to -- to view those with favor 

 4 because they don't want a lot of interlocutory 

 5 appeals. 

 6 There's a lot of other points that could be 

 7 said. I guess I'll just say one last point on 

 8 point-counterpoint and then I'm happy to answer any 

 9 questions. I really didn't focus on point-counterpoint 

 10 in a written submission. I think it is a useful tool. 

 11 I think what's important, of overarching importance is 

 12 that whether it's that tool or a requirement that the 

 13 parties focus by having citations to the record and 

 14 specifically discussing the facts. 

 15 What you want, it seems to me, in the summary 

 16 judgment context is that the litigants be disciplined 

 17 and the court be disciplined to look at record facts. 

 18 The Michigan courts in the last ten years or so since 

 19 the Supreme Court issued the decision in Maiden versus

 20 Rozwood which I cited in my papers at another decision, 

 21 have been very consistent about requiring the 

 22 non-movant to come forward with admissible evidence. 

 23 If it's a police report and a hearsay 

 24 statement prior to the Maiden case in our state courts, 

 25 the courts would sometimes look at that anyway. Now 

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 1 the state courts in following what they understood the 

 2 federal courts were doing have required that that 

 3 evidence be admissible evidence. If it's a document, 

 4 it should be accompanied by an authenticating 

 5 affidavit, for example, or deposition testimony. 

 6 That's the best way to be sure that both 

 7 parties present a focused factual dispute and the court 

 8 can then decide this is a factual dispute that needs to 

 9 go to the jury.

 10 JUDGE KRAVITZ: Ms. Ross, thank you very, very 

 11 much for your time and your testimony and your 

 12 traveling.

 13 MS. ROSS: Thank you so much for the 

 14 opportunity.

 15 JUDGE KRAVITZ: At this glorious location.

 16 Okay. So I think what we'll do is take our 

 17 break now and we'll start up with Ms. Arkin. We're 

 18 going to -- we have a lot of witnesses. So I'd really 

 19 like this break to be as close to ten minutes as we can 

 20 get it, humanly get it. Okay?

 21 (Recess taken.)

 22 JUDGE KRAVITZ: Well, I'm dying to use this 

 23 gavel. Large numbers of our crew. They are on the 

 24 way. Okay.

 25 All right. Well, before we get started I 

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 1 wanted to say something that I should have said at the 

 2 outset, which is we're very blessed to have judges with 

 3 us today and practitioners, but we're doubly blessed 

 4 because we also have law students with us today. And 

 5 we have law students from the Santa Clara University 

 6 Law School and Dean Hsieh who is with -- whose civil 

 7 procedure class is large, but they've been shuttling in 

 8 and out within the confines of this glorious 

 9 courtroom. 

 10 So, anyway, we are very, very happy to have 

 11 you here and hope that you're learning a little bit 

 12 about what goes into those rules that you learn about 

 13 in class.

 14 Ms. Arkin?

 15 MS. ARKIN: Good morning.

 16 JUDGE KRAVITZ: Welcome.

 17 MS. ARKIN: It's a pleasure to be here. Thank 

 18 you for the opportunity to testify before you today. 

 19 Just to give you some perspective, I have 

 20 opposed summary judgments since 1984 when I started as 

 21 a paralegal for a prominent plaintiffs law firm and 

 22 I -- and through becoming a partner in that law firm 

 23 and another major plaintiffs law firm, I've been one of 

 24 the people who actually pulled all the depos and 

 25 discovery and does the separate statements because in 

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 1 California since that time they have had this 

 2 point-counterpoint both in the federal system and 

 3 California state court. I'm very familiar with it. 

 4 Over the years it has become a much more 

 5 elaborate, time-consuming, resource-intensive prospect, 

 6 and I echo all of the sentiments expressed by the 

 7 judges who testified this morning. I agree that it 

 8 is -- it's not the best use of my time or your time. 

 9 I'm a big, big fan of uniformity. In fact, I 

 10 serve on the California Judicial Council Advisory 

 11 Committee for Civil and Small Claims, and one of the 

 12 things we have tried -- several years ago they went to 

 13 uniform statewide rules on case management and we are 

 14 now trying to get that for trial, pretrial and trial 

 15 rules, and have encountered difficulty with the 

 16 judges. 

 17 But I believe uniformity is appropriate. I 

 18 also agree with Judge Wilken very strongly that you 

 19 start with the simple and then on a case-by-case basis 

 20 you allow change.

 21 So no point-counterpoint is meant as a 

 22 mandatory rule, but given the flexibility afforded to 

 23 federal judges, they can use that in an appropriate 

 24 case. I would only caution that the rule be cast in 

 25 the form of good cause for changing from the basic rule 

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 1 because we discovered in California that absent that, 

 2 individual judges will simply make their own standing 

 3 rule that it's always -- that every case warrants 

 4 point-counterpoint.

 5 So I think there has to be some reason for 

 6 it. It doesn't have to be extensive or elaborate, but 

 7 there needs to be some reason why the judge is using it 

 8 in this case.

 9 PROFESSOR MARCUS: I'm sorry to interrupt.

 10 MS. ARKIN: No problem.

 11 PROFESSOR MARCUS: It's something you didn't 

 12 mention. I think you said that over the years you've 

 13 been working with point-counterpoint, motions have

 14 become more burdensome to deal with? 

 15 MS. ARKIN: Yes. 

 16 PROFESSOR MARCUS: Am I right, you think that 

 17 really wasn't because of point-counterpoint but 

 18 something else? 

 19 MS. ARKIN: No. I actually believe it is to 

 20 do with point-counterpoint because in the early days 

 21 they were much more simple. They were easier. There 

 22 were fewer facts to deal with. I believe that defense 

 23 firms now and I've made maybe four summary judgment 

 24 motions in my career. I'm always opposing them. 

 25 They -- they have become far more elaborate in 

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 1 terms of the number of facts and the precise nature of 

 2 each single fact and the -- and I have to say that the 

 3 cases I deal with, insurance bad faith, mass torts, 

 4 employment, construction defect, they are very complex 

 5 cases and I don't think they are suitable for summary 

 6 judgment in almost every case.

 7 So the nature of the case increases the 

 8 complexity, but I think the defense firms increase the 

 9 complexity deliberately in order to make it more 

 10 difficult to oppose and more likely that it will be 

 11 granted because it's just so much to get through, and 

 12 if the plaintiff doesn't -- and this -- and I wanted to 

 13 address your question about inferences, too, because I 

 14 agree with Judge Wilken on that. 

 15 As these cases get more complex, the 

 16 point-counterpoint gets more complex, you have a 

 17 statement of fact in evidence and you have to come up 

 18 with evidence that directly contradicts that fact or 

 19 the judge should or must grant that motion. But that 

 20 doesn't allow for, as Judge Wilken discussed, the 

 21 narrative, and the narrative is where the inferential 

 22 facts come in. That's very difficult to argue that in 

 23 a separate statement. 

 24 And California's separate statement 

 25 requirements have become more rigid in terms of now you 

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 1 can't even put objections in your separate statement. 

 2 You must always cite to the -- you must say whether 

 3 it's disputed or undisputed as to the type of 

 4 evidence. It doesn't afford the opportunity to explain 

 5 why, while that fact is true, there's actually a good 

 6 reason why summary judgment shouldn't be granted.

 7 So -- so on the good cause -- I think there 

 8 should be good cause if the judge is going to change 

 9 it.

 10 On the "must" versus "should," one of the 

 11 statements was that "should" -- using "should" won't 

 12 result in fewer summary judgments granted. And that's 

 13 a good thing. As far as I'm concerned --

 14 JUDGE KRAVITZ: I -- as the defense bar tells 

 15 us, the summary judgment is rarely granted, and the 

 16 plaintiffs bar tells us that summary judgment is always 

 17 granted. And I figure that the truth is somewhere in 

 18 between.

 19 MS. ARKIN: Absolutely. It is not always 

 20 granted, but it is often granted where it should not 

 21 be. And that's where my experience is particularly 

 22 helpful, I think, because not only have I opposed 

 23 hundreds of summary judgment motions, and most of them 

 24 are not granted, but I have reversed on appeal dozens 

 25 which were granted. 

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 1 Yes, ma'am?

 2 JUDGE ROSENTHAL: If the rule was written as 

 3 it is now, do you find yourself arguing with the word 

 4 "should" that although there are no facts in dispute 

 5 material to your -- the other side's entitlement to 

 6 judgment, the judge should nonetheless deny summary 

 7 judgment? 

 8 MS. ARKIN: Well, yes, I do. I don't actually 

 9 argue it, no. I believe it.

 10 JUDGE ROSENTHAL: Okay. I'm really directing 

 11 my question more to the way in which you frame your 

 12 argument to the judge, that is, have you argued 

 13 differently since the rule became "should" instead of 

 14 "shall"? 

 15 MS. ARKIN: Yes. And, again, that goes back 

 16 to the inference issue. I think that where -- when a 

 17 judge looks at everything and just has a gut feeling 

 18 that there is a case here, there's something here, even 

 19 though the plaintiff, especially the pro se plaintiff, 

 20 has not been able to identify specific facts in 

 21 dispute, but the judge really feels like there is a 

 22 case there, then it should go to trial and the judge 

 23 should have the ability to say, "Okay. You didn't do a 

 24 great job on your opposition, but I think there's a 

 25 case here and I want to see it go to trial." I believe 

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 1 the Constitution demands that flexibility. 

 2 JUDGE BAYLSON: Can I? You know, your point 

 3 and a point of some of the other speakers this morning, 

 4 particularly some of the attorneys who primarily 

 5 represent defendants, assume that we're trying to 

 6 tinker with the standard. And we're not. This is a 

 7 procedural thing. Now, we already have 

 8 point-counterpoint and now it's fine, that to us is 

 9 procedural. That's the province of this committee, and 

 10 it's an important issue. 

 11 But "must," "shall," "should," in our mind at 

 12 least, we're not tinkering with the standard. The

 13 standard has been set by the Supreme Court in the 

 14 trilogy. And it's confusing in some respects, but, you 

 15 know, it's not our province to correct that.

 16 So what's the big -- why is it such a big deal 

 17 as to what word we use if we're just talking about

 18 procedural and not changing the standard? 

 19 MS. ARKIN: Well, then why is there a push to 

 20 change "should" to "must"? 

 21 JUDGE BAYLSON: Well, ask some of your 

 22 colleagues.

 23 MS. ARKIN: I would have left it "should." So 

 24 what different -- 

 25 JUDGE BAYLSON: Would you have a problem if it 

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 1 said "shall"? We're not suggesting that there's any 

 2 change in the standard when "shall" became "should." 

 3 MS. ARKIN: Okay. I'm with that. I'm good 

 4 with that then. Leave it at "should."

 5 JUDGE HAGY: Leave it at "shall." That's the 

 6 word. It's "shall." 

 7 MS. ARKIN: Well, but now it's "should." 

 8 JUDGE KRAVITZ: We shall not use "shall" 

 9 anymore.

 10 MS. ARKIN: Well, the committee notes itself 

 11 discuss the fact that "shall" has some flexibility, I 

 12 believe, that "should" has flexibility, and that "must" 

 13 probably doesn't.

 14 So I agree. The Supreme Court has set the 

 15 standard, but the case law has evolved such that 

 16 flexibility is available, and I want the further of 

 17 that.

 18 JUDGE KRAVITZ: Judge Walker?

 19 JUDGE WALKER: Ms. Arkin, I agree with you 

 20 with respect to point-counterpoint, as my colleagues 

 21 know, but tell me from your practical experience, given 

 22 your practice, why point-counterpoint isn't to your 

 23 advantage to attempt to defeat summary judgment by

 24 allowing you to raise a number of issues that would 

 25 preclude a court from rendering summary judgment? So 

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 1 why isn't point-counterpoint a plus rather than a 

 2 negative for you? 

 3 MS. ARKIN: In some cases it is handy to have 

 4 a specific fact stated and you have specific evidence 

 5 that refutes that fact. That's local and it's easy to 

 6 show the court, hey, look, there it is. 

 7 The problem is -- and that applies in cases 

 8 where one witness says the light was red and another 

 9 witness says the light was green.

 10 In most cases, however, the complexity of the 

 11 facts -- the complexity of the legal principles that 

 12 apply make that kind of clear-cut, this is disputed 

 13 kind of evidentiary fact very difficult to relay to the 

 14 court. 

 15 And just as one example, most of my career has 

 16 been spent in the insurance bad faith context and, as 

 17 you may be aware, especially in the state court, but it 

 18 is also for federal court cases, the genuine dispute 

 19 doctrine. If there's a genuine dispute as to whether 

 20 or not the insurance company's decision was 

 21 unreasonable, then there's no bad faith.

 22 Well, reasonableness is traditionally a jury's 

 23 province and to find -- the way the case has evolved in 

 24 the insurance bad faith context, if an insurance 

 25 complaint simply had an expert write an affidavit and 

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 1 say, you know, based on the facts they had, the 

 2 information they had, it was completely reasonable for 

 3 them to deny this claim. And the plaintiff's side

 4 would, of course, say, no, it wasn't reason -- their 

 5 expert would say it wasn't reasonable. 

 6 The courts were traditionally and consistently 

 7 granting summary judgment on the basis -- on the basis 

 8 that as a matter of law the insurance company acted 

 9 reasonably even in the face of a plaintiff's expert 

 10 saying it wasn't reasonable for these reasons. 

 11 Fortunately, the California Supreme Court last 

 12 year issued an opinion saying that this is not 

 13 something that can normally be determined as a matter 

 14 of law. It's an issue of fact. There are very limited 

 15 circumstances in which that can be decided. But until 

 16 the Supreme Court came out with that decision we were 

 17 losing summary judgments at a rapid rate on that issue 

 18 because it's complex and because it's intricate in

 19 terms of the legal principles involved.

 20 So a simple point-counterpoint works in a very 

 21 small number of cases, as you suggest, and does not 

 22 work in the majority of cases that I've seen and the 

 23 resultant workload increase because of 

 24 point-counterpoint has been astronomical for plaintiffs 

 25 who can least afford to do it. 

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 1 Does that answer your question? 

 2 JUDGE WALKER: Facts are nuanced. They're 

 3 not -- 

 4 MS. ARKIN: They are. They absolutely are in 

 5 most of the cases I've dealt with in my career.

 6 One thing I'd like to mention before I check 

 7 to see if there are any other questions, and it wasn't 

 8 in my written testimony, but I will supplement that 

 9 with comments before the deadline, is on (c)(3), which 

 10 is the provision saying that you can say it's 

 11 undisputed for purposes of this motion only or 

 12 generally. 

 13 I would caution you to be careful and perhaps 

 14 change this wording a little bit. In California state 

 15 court the statute is silent. The Central District

 16 accepted rules are silent.

 17 I have suffered motions in limine precluding 

 18 evidence on issues that I deemed undisputed for 

 19 purposes of summary judgment. In California and in the 

 20 federal courts you only have to show one disputed fact 

 21 to overcome summary judgment. So there are times where 

 22 I -- I believe that fact is in dispute, but because of 

 23 the time and effort needed to go find the evidence to 

 24 dispute that fact I have for the purposes of that 

 25 motion said it's not disputed.

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 1 And then that's been turned around and I've 

 2 been attacked at trial saying I stipulated to the 

 3 facts. This is a trap for the unwary and I think the 

 4 default should be that a fact is undisputed for 

 5 purposes of the motion only unless the party otherwise 

 6 indicates that it's for general purposes. Because I 

 7 think you're going to find a lot of people tripping 

 8 themselves up on that and it's going to engender tons 

 9 of appeals because people are -- they're -- they don't 

 10 dispute the fact and later it's held against them when 

 11 that's not what they intended. So I just would like to 

 12 sound the warning on that. 

 13 JUDGE KRAVITZ: And we've heard that from 

 14 others.

 15 MS. ARKIN: Oh, good. Okay. You mean I'm not 

 16 original? 

 17 That's really all I have to -- 

 18 JUDGE KRAVITZ: No. It's just support for 

 19 your conclusion. 

 20 MS. ARKIN: Good. That's good. 

 21 The other thing I mentioned in my testimony 

 22 was a longer notice period for summary judgment and a 

 23 later filing period for summary judgment. In 

 24 California we changed from a -- a 21-day notice period 

 25 with the opposition -- 

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 1 JUDGE BAYLSON: You know in our proposal that 

 2 that could be changed by a local rule or by case 

 3 management? 

 4 MS. ARKIN: Again, though, I think the default 

 5 should be the most protective of the jury trial for the 

 6 plaintiff and -- and a judge for good cause can pull 

 7 that back rather than the other way around.

 8 Because in California, that's why we changed 

 9 our statute. We found that a 14-day opposition period 

 10 is basically what we had and -- and like the proposal 

 11 here, there was an opportunity to oppose the motion on 

 12 the basis that further discovery was needed.

 13 We found and the legislature agreed that it 

 14 was -- it was much better overall for a longer notice 

 15 period so that discovery tailored to the issues raised 

 16 in the summary judgment motion could be conducted. And 

 17 I think that's a very important point so that if the 

 18 goal is fairness, then the plaintiff gets the summary 

 19 judgment motion, has at least 60 days to do discovery, 

 20 and then the opposition is filed and the court -- 

 21 that's as good as you're going to get to give to a

 22 court on what the real genuine issues are.

 23 If there's nothing further? Thank you so 

 24 much.

 25 JUDGE KRAVITZ: That's it? Thank you very 

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 1 much, Ms. Arkin. 

 2 Mr. Lederer? He's not coming today. Not 

 3 coming.

 4 Ms. Cabraser? Welcome. You're well known to 

 5 this committee and I look forward to your views.

 6 MS. CABRASER: Thank you. 

 7 Thank you, Your Honor, and thank you to the 

 8 committee. Actually, every time this committee 

 9 convenes in public should be an expression for thanks 

 10 from the bar for your unceasing and dedicated work on 

 11 the ongoing project of the federal rules. In fact, 

 12 although it's only February 2nd, we'd like to offer a 

 13 blessed Valentine's Day to the committee who do so much 

 14 for our lives and our practice and those of our 

 15 clients.

 16 JUDGE BAYLSON: What about Groundhog Day?

 17 JUDGE KRAVITZ: I can see some criticism is 

 18 about to come.

 19 MS. CABRASER: Well, this is not one of 

 20 those -- this is not one of those "with all due 

 21 respect" arguments.

 22 With all great respect, much of the most 

 23 acclaimed work of the committee in improving and 

 24 clarifying the federal rules has been the trend toward 

 25 identifying and adopting best practices that have 

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 1 evolved throughout federal civil practice in making 

 2 them part of the rules in order to provide additional 

 3 uniformity, which in general is a very good thing, and 

 4 additional guidance, which is also a very good thing 

 5 both to judges and practitioners. 

 6 And we've seen that, for example, with respect 

 7 to the additions to Rule 23, fleshing out the class 

 8 action settlement approval process of Rule 23(e), 

 9 providing factors and standards and guidance for the 

 10 appointment of class counsel in Rule 23(g). 

 11 And I think, although at first blush adding 

 12 the detail of the default point-counterpoint procedure 

 13 to Rule 56 might seem a part of this trend, we would 

 14 caution that in many cases, perhaps the most complex 

 15 cases, the requirement of numbered point-counterpoint 

 16 as an addition to the already existing Rule 56 

 17 procedure is not a best practice and that it not be 

 18 adopted.

 19 It exists. It's out there. We all know about 

 20 it. I have practiced as a private lawyer since 1978 

 21 both in the Northern District of California under 

 22 various iterations of the local rules and elsewhere in 

 23 the federal system and in many state courts as well. 

 24 I've had occasion to be required to file such 

 25 statements. And I've also defended and filed summary 

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 1 judgment motions without that requirement and have been 

 2 unable to perceive any improvement in terms of 

 3 outcome. 

 4 I have perceived a vast difference in the 

 5 number of hours that is spent when point-counterpoint 

 6 is required and the number of dollars that is certainly 

 7 spent on both sides and the amount of time and effort 

 8 that judges must devote to sifting through these 

 9 statements when they are proffered.

 10 And I'm not one of those who believe that many 

 11 judges are lazy and would benefit from additional 

 12 make-work projects. It's been my experience that most 

 13 judges work harder than most of us lawyers and 

 14 certainly for less per hour. They have limited staffs, 

 15 limited resources, and there's a lot of demand, a lot 

 16 of competing demand on those resources. 

 17 So devoting those resources to this additional 

 18 requirement has to be given very, very considered 

 19 consideration under a cost benefit analysis. Is it 

 20 going to make adjudication fairer, more cost effective 

 21 and quicker? I think, unfortunately, in most 

 22 situations the answer is -- is no. There will be 

 23 either no change or there will be a negative change. 

 24 This is one of those areas in which federal 

 25 judges should have flexibility. They already have

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 1 flexibility under Rule 16(c)(2)(P) to adopt a statement 

 2 of undisputed fact, point-counterpoint in an 

 3 appropriate case or to use other methods to get at the 

 4 facts in any given summary judgment situation, and they 

 5 can do that at any point in the summary judgment 

 6 process. They can do it after the initial briefs come 

 7 in, after the responsive briefs come in, and they can 

 8 surgically modify the procedure to the problem at 

 9 hand. 

 10 The concern that I have as a practitioner and 

 11 the concern that Public Justice, which is the public 

 12 interest law firm whose hat I'm wearing today, has is 

 13 that utilizing this as a dominant rule, a default rule, 

 14 a rule to use if less good cause is shown is going

 15 to -- is going to add to the box of binders and briefs 

 16 in all summary judgment situations without creating a 

 17 net benefit in most of those situations. 

 18 The concern about analyzing a dispute into 

 19 numbered statements of undisputed fact is also an 

 20 inferential one. It is in the nuances that many 

 21 disputes live and that the truth is most often to be 

 22 found.

 23 Public Justice is a proponent of the jury 

 24 trial, is concerned with upholding the constitutional 

 25 right to a jury trial. We would note that there is no 

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 1 specific constitutional right to summary judgment and 

 2 that only in situations where it's abundantly clear 

 3 that there is not a material issue of disputed fact on 

 4 which a claim or an issue or a case can turn should 

 5 summary judgment be entered.

 6 Now, that is not to say that our goal is to 

 7 make summary judgment more difficult to achieve in

 8 those facts that warrant it because I've noted 

 9 plaintiffs make summary judgment motions, too.

 10 When we make them we're very cognizant that 

 11 we are the party with the burden of proof. We are

 12 generally in litigation and certainly must be in 

 13 summary judgment motion. And in cases where it is a 

 14 legal dispute, not a factual dispute, that burden can 

 15 be met and overcome without the need of endless 

 16 statements of undisputed facts.

 17 For those many cases in which each side wishes 

 18 dearly to educate the judge as to the merits of its 

 19 position, we would submit that an underutilized rule, 

 20 Rule 16, is the place for the education of judges via 

 21 fact and argument, and it can be done in a way that 

 22 doesn't burden judges because it can be done in the 

 23 real time of a pretrial conference without the boxes 

 24 and binders. 

 25 For those situations in which there is a 

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 1 desire on one side or the other to resolve the dispute 

 2 short of a full-blown jury or bench trial, there's also 

 3 the opportunity to use a summary jury trial, which

 4 again enables inferences and nuances to come into 

 5 play. 

 6 The concern with deconstructing complex 

 7 disputes in the statements of undisputed fact is that 

 8 by such a deconstruction, some truth is lost. Facts 

 9 are the bones, but it is the connective tissue, the 

 10 inferences that create a living body.

 11 Mosaics are made up of tiles, but if the tiles 

 12 are numbered and stacked, the picture disappears. It 

 13 doesn't become easier to see the picture for who should 

 14 be the prevailing party. 

 15 Finally, it's been my experience being 

 16 involved in both bench trials and jury trials, and this 

 17 has happened many, many times, that we go through a 

 18 summary adjudication process. The summary judgment 

 19 motion is denied. When the trial is conducted, whether 

 20 it is a jury trial or a bench trial, facts that may be 

 21 quite material come into evidence in the course of that 

 22 time that were not enumerated or argued or submitted to 

 23 the court in summary judgment stage.

 24 In the summer of 2007, I was part of a bench 

 25 trial that took place in California state court. There 

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 1 had been the California equivalent of the summary 

 2 adjudication motion right before the trial. It took 

 3 hundreds of hours to brief, to prepare for, to 

 4 enumerate the facts, to obtain the affidavits, to 

 5 submit the effort -- the evidence, and I know that it 

 6 took the court many, many, many hours considering all 

 7 of that before the court entered both an oral and a 

 8 written denial of that motion. 

 9 When the very same issue was presented in the 

 10 course of a bench trial, at which we had someone 

 11 working with us as to time and exhibits, the matter was 

 12 raised, testified to, evidence was admitted on -- in an 

 13 hour and 45 minutes in the course of one morning at 

 14 trial. 

 15 The summary judgment exercise was a waste of 

 16 judicial time and resources. It would have been less a 

 17 waste of judicial time and resources had the procedure 

 18 that many federal courts across the country use today 

 19 been available, and that is simply reasonable page

 20 limits with respect to briefs, statements of fact in 

 21 the briefs, the necessary affidavits, et cetera.

 22 We hope that the committee does not act to 

 23 limit the discretion that the federal courts and 

 24 federal judges have in this area to use the procedure 

 25 that best suits the controversy, which in most cases 

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 1 will be one that does not utilize the 

 2 point-counterpoint. 

 3 There was a question -- there was a reference 

 4 to the use of surreply brief, and we would certainly 

 5 recommend that if point-counterpoint becomes the 

 6 default position that a surreply brief would be 

 7 required at the end to make sure that there is no 

 8 injustice and that evidence is not left out. There's a 

 9 paradox there. If you are making an improvement to the 

 10 federal rules that requires yet another brief or 

 11 another submission, then I think that's a strong 

 12 argument that the reform is possibly counterproductive.

 13 JUDGE KRAVITZ: I take it you would not 

 14 oppose, I guess it was Judge Wilken's suggestion, maybe 

 15 Judge Hamilton's, that in a -- if it were not 

 16 point-counterpoint, that in a brief one would be 

 17 required to actually cite to the record for whatever 

 18 facts you're advocating or either disputing or 

 19 undisputing? 

 20 MS. CABRASER: Absolutely. I think that is 

 21 salutary because, A, it does force the parties where 

 22 they have specific evidence, specific facts to bring it 

 23 to the court's attention and it saves the court's time 

 24 and resources. 

 25 JUDGE BAYLSON: You and your -- the group 

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 1 you're representing today handle cases in many 

 2 different courts across the country. Do you see value 

 3 in uniformity in Rule 56? 

 4 MS. CABRASER: I believe the requisite level 

 5 of uniformity in Rule 56 comes from the substantive law 

 6 on summary judgment, the Supreme Court trilogy. I

 7 think the requirement of evidence requires a statement 

 8 of facts. The pinpoint citation suggestion would be 

 9 more than enough uniformity. 

 10 If disputes were all uniform, then we 

 11 certainly could have a uniform summary judgment or

 12 summary adjudication procedure, but the federal courts 

 13 entertain such a vast and diverse array of cases that 

 14 it's very typical to see this particular uniformity 

 15 proposal providing a net gain. 

 16 JUDGE BAYLSON: Well, what -- would you have 

 17 issues if the point-counterpoint system was made 

 18 optional by the judge in the local rule for certain 

 19 types of cases for some other very --

 20 MS. CABRASER: I believe it's optional now and 

 21 certainly well known. Judges can do both under 

 22 Rule 16. I think the concern about making it optional 

 23 again would be a semantic one to assure that it did not 

 24 become the default or an automatic provision. The

 25 "good cause shown" language might be a good way to do 

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 1 that. It also might be something that could be written 

 2 into the notes. That's one way to get at the facts 

 3 that are truly undisputed in a particular cases. 

 4 JUDGE BAYLSON: Well, you're right about all 

 5 of that, but do you see any value or detriment to the 

 6 rule itself pointing out the option of point and 

 7 counterpoint, and if the judge wanted to use it or one 

 8 of the parties wanted to advocate it, the procedure 

 9 would be in the rule so you would at least have as a 

 10 starting point a national optional point-counterpoint 

 11 rule as opposed to leaving it to an individual judge's 

 12 whim or a local rule, recognizing, as you say, that, 

 13 you know, if a particular judge wanted to do it a 

 14 particular way, that that would probably happen, but at 

 15 least there would be a standard.

 16 MS. CABRASER: It's a close question, Your 

 17 Honor. I think on balance I would favor not setting it 

 18 forth in the black letter rule as an option because, 

 19 again, that has a way of becoming the default 

 20 position. I understand it's a sensitive issue because 

 21 we would want to make sure that any judges who aren't 

 22 aware of it as an option for a particular case would be 

 23 aware of it. But I think given the fact that it's in 

 24 part of various court's local rules at various times 

 25 and it is now, I think -- I think it's sufficiently 

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 1 known and perhaps a notation in the notes.

 2 JUDGE KRAVITZ: Judge Walker. 

 3 JUDGE WALKER: Ms. Cabraser, can you give us 

 4 any help on the "should" versus "must" debate that

 5 we've been hearing so much about? 

 6 MS. CABRASER: Well, I was going to say that 

 7 point-counterpoint should not become a part of 

 8 Rule 56. With respect to "must" or "should," it is a 

 9 philosophical question of great depth. To me "must" or 

 10 "shall" in the federal rules has to do with what 

 11 lawyers must do, deadlines, matters jurisdictional. 

 12 "Should" has to do with what judges do. And I 

 13 think as long as these are Federal Rules of Civil 

 14 Procedure and are not attempting to change substantive 

 15 standards, "should" is a better and safer verb than 

 16 "shall" or "must," and I think the committee made the 

 17 right move when it clarified the rules to go from 

 18 "shall" to "should" in Rule 56.

 19 JUDGE KRAVITZ: Thank you very much.

 20 Mr. Glaessner? Oh, I'm sorry. Did I miss 

 21 someone? 

 22 Mr. Moscato? I'm sorry. I'm working off two 

 23 sheets here. I shouldn't do that. Mr. Moscato. Sorry 

 24 about that. 

 25 MR. MOSCATO: No problem.

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 1 Thank you, Judge Kravitz, and thank you 

 2 members of the committee. I'm here today on behalf of 

 3 the National Employment Lawyers Association, a group of 

 4 over 3,000 plaintiffs employment lawyers around the 

 5 country, and I wanted to add my thoughts or the 

 6 organization's thoughts as to a lot of the things we 

 7 all have heard so far in these various hearings. And I 

 8 0have four things in particular I want to talk about. 

 9 But the first thing is the issue of the cost 

 10 and burden upon the non-moving party of the 

 11 point-counterpoint procedure. Ms. Cabraser is one of 

 12 the lucky few in her firm or one of the lucky few among 

 13 our membership who have a certain amount of resources 

 14 available to them and manpower and woman power to deal 

 15 with these motions. The vast majority of our members 

 16 are working by themselves as solo practitioners or in 

 17 offices of three or fewer attorneys generally with no 

 18 paralegal support.

 19 As a result, the cost of responding to these 

 20 summary judgment motions has become -- is incredibly 

 21 burdensome on the vast majority of our members.

 22 JUDGE KRAVITZ: Can I just test that a little 

 23 bit? If instead of having point-counterpoint you had a 

 24 brief and you had to respond to everybody's -- to your 

 25 opponent's statement of material facts with a pinpoint 

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 1 cite to the record, how would that make your life 

 2 easier and cheaper and -- than putting it in a 

 3 point-counterpoint statement? 

 4 MR. MOSCATO: It's a fair point. There 

 5 certainly -- the cost and burden of responding to a 

 6 summary judgment motion isn't going to go away.

 7 JUDGE KRAVITZ: Right.

 8 MR. MOSCATO: But it does add that extra layer 

 9 of having to go through and seeing these examples that 

 10 I've tried to list in my submission, examples of 

 11 over -- throughout the country folks who were faced 

 12 with hundreds of separate paragraphs of so-called 

 13 disputed facts and having to respond to each in turn 

 14 one at a time without talking about the global context 

 15 of what those facts mean in putting them together.

 16 JUDGE KRAVITZ: You think there will be fewer 

 17 if they are required to put it in a brief that has page 

 18 limits on it? 

 19 MR. MOSCATO: Correct. Because you can put 

 20 the story together within the context in which those 

 21 facts belong. 

 22 JUDGE BAYLSON: Well, with regard to that, do 

 23 you have any objection to the national rule stating 

 24 that briefs must contain pinpoint citations to the

 25 record? 

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 1 MR. MOSCATO: No objection whatsoever.

 2 Again, my only point is the story that most -- 

 3 the vast majority of my membership faces, which is

 4 being submerged with these lengthy statements of facts 

 5 which takes their time away from being able to deal 

 6 with the real merits of the underlying summary judgment 

 7 motion. And that gets lost in the shuffle for 

 8 everybody, not the least of which is the judge who's 

 9 also required to go through and deal with these points 

 10 and counterpoints.

 11 One of the proposals that I put forward in our 

 12 papers is -- deals specifically with the part of the 

 13 proposed rule that speaks to being concise and limiting 

 14 the points to those that are material. If the 

 15 committee is going to move forward with the 

 16 point-counterpoint system, there at a minimum needs to 

 17 be a procedure by which those motions that don't meet 

 18 those requirements, that are not concise and aren't 

 19 limited to material facts, that -- to make it easier, 

 20 to lighten the load on the non-movant in responding to 

 21 those. 

 22 The proposal that I put forth in my statement 

 23 is to permit a non-moving party to move to strike the 

 24 entire statement, not individual points, which 

 25 essentially makes it so they can go through it and

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 1 respond to the entire statement, but if it is -- it's 

 2 basically one of those -- judges will know what a 

 3 statement looks like that shouldn't be. 

 4 We can't be talking about a specific number 

 5 limitation on the number of facts. Cases are going to 

 6 be different, but it's one of those you know it when 

 7 you see it that are going to be a general category of 

 8 statements of facts that just don't meet the 

 9 conciseness that you all have in mind, and you should 

 10 have in the rule or at least the comments of the rule, 

 11 there should be a specific procedure by which judges 

 12 can strike the entire statement and -- and force the 

 13 moving party to try again.

 14 The second point I wanted to make is with 

 15 respect to the arguments that we've heard already today 

 16 from Judge Wilken and others regarding inferences, and 

 17 I want to plead specifically about the kinds of cases 

 18 that my members are handling, which are employment

 19 termination cases.

 20 Those kind of cases are particularly not well 

 21 suited for the point-counterpoint mechanism, 

 22 specifically because our cases are the types of cases 

 23 on which the plaintiff relies heavily on the inferences 

 24 that can be drawn from the facts, disputed or 

 25 undisputed, and those inferences depend on fixing those 

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 1 facts in the broader context of other facts. 

 2 So we've heard that generally. I wanted to 

 3 point to some examples of how that works in the kinds 

 4 of cases that I would represent.

 5 So, for example, let's say that we've got a -- 

 6 a fact in the statement of facts that it is undisputed 

 7 that the plaintiff was tardy on one occasion. That may 

 8 be true or it may be disputed. Under the current 

 9 iteration of the proposal the only method of dispute 

 10 would be to contradict that fact with other facts in 

 11 the record, but there are many other things that are 

 12 going to be in play. For example, the asserted fact 

 13 might be factually accurate, factually true, but 

 14 misleading in the way that it's being stated by taking 

 15 it out of context.

 16 So, for example, if the employee -- if there's 

 17 a statement that the employer has a written rule that 

 18 clearly prohibits tardiness, that might be technically 

 19 accurate, but there might be a question of whether the 

 20 employees are aware or unaware of that rule, how lax 

 21 the company is in enforcing that rule, the company's 

 22 practice of generally ignoring the rule or giving some 

 23 latitude. 

 24 JUDGE BAYLSON: Can I interrupt you? 

 25 MR. MOSCATO: Yes. 

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 1 JUDGE BAYLSON: This is a point that we've 

 2 heard before and it's an important point. What is

 3 the -- and I understand about inferences and, of 

 4 course, we all understand what the shifting burdens are 

 5 in employment cases, but what is the -- what is the 

 6 hardship of putting that rebuttal either in the 

 7 response to the moving party's statement that tardiness 

 8 is not allowed and this plaintiff was fired, in putting 

 9 that in your response or, as the rule would allow,

 10 adding additional facts that the rule was ignored or 

 11 the rule wasn't, you know, sporadically enforced and 

 12 things like that. 

 13 And isn't that -- and the second part of my 

 14 question, isn't that a better way of getting it -- or 

 15 at least an equally good way of getting it across to 

 16 the judge that there are factors in this case? How are 

 17 you disadvantaged by having to put that in a separate 

 18 statement as opposed to putting it in your brief? 

 19 MR. MOSCATO: I think Ms. Cabraser said it 

 20 real well when she was talking about the mosaic and 

 21 separating out those tiles and putting them in a pile 

 22 where you then can't see the context. What the 

 23 point-counterpoint procedure requires is to 

 24 specifically dispute that particular fact about whether 

 25 or not I was tardy. 

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 1 If I add those other facts in a long list of 

 2 facts in my counterpoint, that might get lost in the 

 3 shuffle as to how that relates back to the original 

 4 fact that's been put before you.

 5 JUDGE KRAVITZ: Just so we -- and I happen to 

 6 come from a district that has this. And the way I

 7 personally use it is I actually read the brief first 

 8 and the brief gives me the mosaic and it gives me all 

 9 the inferences and it says, "Yes, he was tardy. But 

 10 guess what? That's not why he was fired. It's because 

 11 of some other thing."

 12 And I use the point-counterpoint statement as 

 13 a resource, much like the boxes with the eggs sort of 

 14 thing, in order to figure out whether people do have 

 15 citations and also figure out what the fulcrum is, I 

 16 mean, where the fulcrum -- what moves the summary 

 17 judgment thing.

 18 So I think -- I guess I can just say we may or 

 19 may not do point-counterpoint, but I do think people 

 20 have a wrong view of point-counterpoint. I really

 21 don't know of a judge who says, "I've got this case and 

 22 I think the first thing I'm going to do is read the 

 23 point-counterpoint statement." You wouldn't know 

 24 enough about the case. 

 25 I mean, you read the brief. It tells you what 

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 1 the issues are, it tells you the mosaic, it tells you 

 2 the inferences, and then you use the point-counterpoint 

 3 as a resource in a way to make sure the parties don't 

 4 try to evade their responsibility of gleaning an 

 5 issue. And I just -- point-counterpoint may have -- 

 6 may be the wrong way to go, but I think it's not the 

 7 wrong way to go because it avoids the mosaic because 

 8 that really is the brief. 

 9 Do you have a response to that? 

 10 MR. MOSCATO: I agree with you that the brief 

 11 is really where the judge should be focusing his or her 

 12 energies on. The parties -- 

 13 JUDGE KRAVITZ: Do you have an example of 

 14 judges that don't read the briefs, all they read is the 

 15 point-counterpoint? 

 16 MR. MOSCATO: No. But the idea is adding that 

 17 incredible cost and burden both on the non-moving party 

 18 and the moving party, and the judges to go through that 

 19 exercise in a very limited amount of time takes away 

 20 from the ability to really focus on "let me see if I 

 21 can put this mosaic together."

 22 JUDGE KRAVITZ: I understand.

 23 PROFESSOR MARCUS: Could I put together two 

 24 things you've been talking about, I think, to see how 

 25 they fit together? I believe you endorsed a motion to 

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 1 strike the entire statement, and I thought that was 

 2 largely directed to situations where it was far too 

 3 large and included lots of unimportant stuff.

 4 Your description on inferences, however, 

 5 suggests that in the kind of cases you're remembering, 

 6 the problem from your perspective would be that the 

 7 moving party's statement leaves out too much stuff. 

 8 And I'm wondering how these fit together. 

 9 Would the motion to strike really be important 

 10 in your kind of cases or are you thinking about in

 11 other kinds of cases? 

 12 MR. MOSCATO: I think both -- both things are 

 13 true. On the one hand, we are forced to respond to 

 14 these lengthy and burdensome lists of facts, many of 

 15 which aren't material, and which we also leave out

 16 inferences. And the procedure doesn't allow us to

 17 argue the inferences through the point-counterpoint 

 18 mechanism. 

 19 So I agree with you that the -- what I suggest 

 20 is that the potential procedure to deal with the 

 21 lengthiness of the initial statements of facts by 

 22 moving to strike it doesn't address that second part of 

 23 the problem. I absolutely agree with that.

 24 PROFESSOR MARCUS: Would you think there could 

 25 be a temptation to make a motion to strike the by times 

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 1 or respond to the content of the statement of facts?

 2 MR. MOSCATO: That -- I can't really speak to 

 3 whether individuals would be tempted to do that. I can 

 4 see how you might see that as a potential problem. I 

 5 would hope that people would not use that procedure in 

 6 order to buy time and really to say, look, this is not 

 7 what you have in mind here with this point-counterpoint 

 8 mechanism.

 9 MR. KEISLER: We've had witnesses appear here 

 10 who tend to make motions for summary judgment and they 

 11 always said we would never file something, like your 

 12 Iowa example where there are 1,100 separate statements 

 13 of material fact. We try to keep them as short as

 14 possible. And we've had lawyers who respond to motions 

 15 for summary judgment saying exactly what you say, which 

 16 is that they see a lot of this. And it sort of makes 

 17 me wish we could subpoena the lawyers who actually file 

 18 the 1,100 plus statements of fact to understand what's 

 19 going on. 

 20 But in your experience and that of your 

 21 members, how do judges react when there are these 

 22 oversized statements of material fact? I mean, it

 23 would be my presumption that not only would it be bad 

 24 strategy for somebody seeking summary judgment to want 

 25 more rather than fewer statements of material fact to 

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 1 be potentially initiated, but that also judges would be 

 2 very hostile and angry to be presented with the kind of 

 3 filings that you're talking about.

 4 I'm wondering if that intuition is correct or 

 5 not in your experience. 

 6 MR. MOSCATO: In my talking to members around 

 7 the country who are dealing with these sorts of motions 

 8 the reality is actually something -- is quite different 

 9 from what you have suggested, which is that most judges 

 10 in many parts of the country are so hostile to the

 11 plaintiff's case to begin with that having a 600-page 

 12 summary judgment motion that lays out all of the 

 13 reasons why the motion should be granted, they are

 14 treating that as ammunition for why they really 

 15 shouldn't be granting the motion for summary judgment. 

 16 And if you've got 600 facts to respond to and 

 17 you're only really able to deal with 400 of them in a 

 18 meaningful way, and there are some that get lost in the 

 19 shuffle, that gives some judges the opportunity to

 20 latch on to, well, look, there's a dispute in these 

 21 facts.

 22 MR. KEISLER: I'm only worried that you're 

 23 going to face a gotcha -- right? -- which is that you 

 24 think a lot of this stuff is garbage, but you can't be 

 25 sure that if you let some go by, it won't be the 

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 1 fulcrum on which you lose your case.

 2 MR. MOSCATO: Correct, correct. And to just 

 3 let some of those slide where we are fairly confident 

 4 they are not the kind of facts that really should be 

 5 decided in a summary judgment motion is really putting 

 6 a lot of trust in the judge to agree with us. So it's 

 7 not really an adequate mechanism for responding. We're 

 8 really going to have to -- if this is a procedure, to 

 9 respond to each and every one of these facts whether or 

 10 not they really are material to the issue. 

 11 JUDGE BAYLSON: Is it your -- you're not going 

 12 to report back to the committee that federal judges are 

 13 hostile to the plaintiffs or plaintiffs in employment 

 14 cases or did I misunderstand you? 

 15 MR. MOSCATO: Well, my membership are folks 

 16 who represent plaintiffs in employment cases. I can 

 17 only speak to those.

 18 JUDGE BAYLSON: Do you see a lot of 

 19 hostility? 

 20 MR. MOSCATO: A lot of hostility around the 

 21 country on plaintiff employment cases and the numbers 

 22 bear that out. I pointed out in my submission to some 

 23 of the statistics toward the end of my submission. Two 

 24 studies, one a recent study by Kevin Clermont and 

 25 Stewart Schwab in the Harvard Law and Policy Review

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 1 that showed plaintiffs in employment cases win rate of 

 2 15 percent as compared to a win rate of 51 percent in 

 3 non-jobs cases.

 4 Also, pretrial adjudications plaintiffs are 

 5 winning those pretrial adjudications 3.59 percent of 

 6 the time as compared to 21.05 percent in other 

 7 plaintiff types of cases.

 8 JUDGE KRAVITZ: Some of those statistics can 

 9 be used a lot different ways. I mean, there are some 

 10 statistics that would suggest that when plaintiffs

 11 employment cases go to trial they lose at a higher rate 

 12 than any other category of case and when they win they 

 13 get reversed by the Court of Appeals at a higher rate 

 14 than any other category, which might suggest that 

 15 perhaps not enough summary judgments are being 

 16 granted. 

 17 MR. MOSCATO: Well, on that note, the other -- 

 18 apparently it's available. The Federal Judicial Center 

 19 did a study fiscal year 2006 in which it found that in 

 20 employment discrimination cases plaintiffs were losing 

 21 73 to 75 percent of summary judgment motions as 

 22 compared to 60 percent in all cases. That's a 

 23 meaningful, large distinction.

 24 JUDGE HAGY: Well, that included partial 

 25 summary judgments.

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 1 MR. MOSCATO: It does. 

 2 JUDGE HAGY: So it can be misleading. My 

 3 experience is 50 percent of employment law cases still 

 4 sue the president of the company just to get his 

 5 attention and then you have to have a barnstorming

 6 after that, and that inflates that statistic.

 7 MR. MOSCATO: It can. Of course, statistics 

 8 can tell lots of different stories.

 9 JUDGE HAGY: Yeah.

 10 MR. MOSCATO: So when you're looking at those 

 11 numbers, 60 to 75 percent, that's a meaningful 

 12 difference and one that tells a story that's rarely 

 13 consistent.

 14 Briefly, just to finish off the point on the 

 15 inferences, one of the other proposals that we put

 16 forward in our statement is that if there's going to be 

 17 a point-counterpoint process adopted by the committee, 

 18 at a minimum the non-movant should be expressly 

 19 permitted to articulate in its response the reasonable 

 20 inferences that might be drawn from those facts that 

 21 are listed and to point out two other facts in the

 22 record that support those inferences so that that 

 23 mosaic is right there for the judge as he or she is 

 24 looking at the point-counterpoint statement.

 25 Moving on to point number 3 that I wanted to 

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 1 make was the question of a potential for surreply. In 

 2 employment discrimination cases motions for summary 

 3 judgment are almost always being framed by the party 

 4 that doesn't have the burden of proof at trial. The 

 5 plaintiff has the burden of proof at trial and the

 6 plaintiff is usually responding to a motion for summary 

 7 judgment.

 8 So our members are telling me that they are 

 9 experiencing over and over in a lot of these districts 

 10 of being sandbagged by briefs that are providing 

 11 abbreviated and unclear statements of the arguments at 

 12 issue in the case and essentially tactically being

 13 written to prevent a cogent response and then waiting 

 14 for the reply brief to --

 15 JUDGE KRAVITZ: And do your members find that 

 16 when that happens and they ask the judge to respond by 

 17 a surreply because the reply brief has raised something 

 18 that's never been raised before, that judges are 

 19 routinely denying them? 

 20 MR. MOSCATO: Absolutely, absolutely. It was 

 21 not one of the issues that we were focusing on when we 

 22 first went through this -- this process. And when I 

 23 went out to my membership to look for some -- some of 

 24 their experiences on point-counterpoint, a number of 

 25 them came up to me, "Hey, what about this other issue? 

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 1 We're having a hard time. We're not getting the 

 2 opportunity to surreply." And so I figured that I

 3 should bring that forward.

 4 Lastly, on "must" versus "should," I don't 

 5 have anything meaningful to add to that that hasn't 

 6 already been said other than to remind the committee of 

 7 the context in which this debate is ongoing. There had 

 8 been, as far as I understand, especially with respect 

 9 to this group, employment discrimination cases, there 

 10 is no outcry that federal courts are denying summary 

 11 judgment motions in cases where they should be 

 12 granted. Quite the opposite is true, at least appears 

 13 to be true from the empirical data that's available to 

 14 us that I pointed to a little bit earlier.

 15 JUDGE KRAVITZ: Great. Any further 

 16 questions? 

 17 Thank you.

 18 JUSTICE SHEPARD: Mr. Chairman, this last 

 19 point is the one I wanted to ask you about. Your 

 20 folks, according to your written submission, win 

 21 dispositive motions a very small percentage of the

 22 time, but they do win sometimes. And I gather you

 23 stand for the idea that where you move for summary

 24 judgments and supply affidavits and exhibits that say 

 25 plaintiff was discriminated against on the basis of 

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 1 age, the employer responds in one way or another, and 

 2 the trial judge says -- the district judge says -- says 

 3 to you or says to the employer, "I am persuaded that 

 4 there are no disputes of fact here that are genuine and 

 5 it also seems to me based on these facts that the 

 6 plaintiff is entitled to judgment as a matter of law. 

 7 You simply haven't made your showing." 

 8 Do you stand for the idea that the judge 

 9 should be able to say, "I think plaintiff was 

 10 discriminated against, all the stuff is here in the 

 11 record, and I'm going to make plaintiff go to trial 

 12 anyway?" And that would be okay with you. 

 13 And I'm trying to figure out why that is. And 

 14 the only reason I've been able to figure out is that 

 15 you think that as a matter of differential impact it 

 16 hurts the guys on the other side of the teepee from you 

 17 relatively higher than it hurts you. Is that the 

 18 reason why you think a judge ought to have the 

 19 discretion to do what I just described? 

 20 What would you say to your client about that? 

 21 Would you say, "Ah, this is the way the cookie 

 22 crumbles"? 

 23 MR. MOSCATO: Well, I can only speak from 

 24 practically what happens and what the numbers are 

 25 reporting to me as to what happened, and the scenario 

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 1 that you're suggesting, it just doesn't -- it doesn't 

 2 happen. 

 3 JUSTICE SHEPARD: No, but you believe it 

 4 should. I mean, you stand for the proposition that it 

 5 ought to. You wouldn't say it's a good thing. You 

 6 would say the district judge should have the discretion 

 7 to say that to your client that day, "I think you've 

 8 established through your motion everything that the law 

 9 requires. I really don't have any doubt in my mind 

 10 you're entitled to judgment as a matter of law, but I 

 11 really like trials or some other reason."

 12 MR. MOSCATO: And I'd have a difficult time 

 13 standing before you in my position, my organization 

 14 position, that the parties are entitled to have their 

 15 day in court to tell you that, well, only if it's 

 16 impacting the other side. So I'll leave it at that, 

 17 though, that maybe -- maybe I agree with you. 

 18 MS. BRIGGS: Can I ask a question? 

 19 JUDGE KRAVITZ: Sure. Go ahead. 

 20 MS. BRIGGS: With regard to what you 

 21 characterize as sandbagging, how well would that be 

 22 addressed if there was a limited right to surreply that 

 23 allows you to specifically respond to evidence that 

 24 wasn't previously cited by the movant and objections 

 25 that were made to the admissibility by the non-movant's 

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 1 evidence? 

 2 MR. MOSCATO: I'm sorry. Can you repeat 

 3 that? 

 4 MS. BRIGGS: Just a very limited right of 

 5 surreply. Basically if new evidence were provided in a 

 6 reply, you were able to respond to that, or if there 

 7 were objections made to the admissibility of evidence, 

 8 you as a non-movant decided earlier you could respond 

 9 to that in a surreply but nothing further, would that 

 10 address any of the sandbagging issues? 

 11 MR. MOSCATO: I think it would and I think it 

 12 would specifically favor a standard that makes it clear 

 13 in the procedure that anything that's new, any new

 14 material on either side, either in the opposition, in 

 15 the reply or in the surreply, should be disregarded by 

 16 the court. So limited by surreply makes sense, yes.

 17 MS. BRIGGS: Thank you.

 18 MR. MOSCATO: Thank you.

 19 JUDGE KRAVITZ: Thank you very much.

 20 Mr. Glaessner, we're now ready for you.

 21 MR. GLAESSNER: Thank you.

 22 JUDGE KRAVITZ: I guess I should say we're at 

 23 this point where commentators are commenting on both 

 24 Rule 26 and 56. It's a lot of material. We've heard a 

 25 lot already and we'll continue to hear a lot. So I 

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 1 guess I'd ask you to be as focused as one can with the 

 2 time provided.

 3 MR. GLAESSNER: Thank you very much, Your 

 4 Honor.

 5 My name is Peter Glaessner. I'm a partner 

 6 with Lombardi, Loper & Conant. It's an Oakland civil 

 7 litigation firm. I've practiced for 26 years in 

 8 federal and state court. Currently the focus of my 

 9 trial practice is employment litigation. So I found 

 10 some of the comments made this morning interesting. 

 11 I'll try to respond to them with my own experiences. 

 12 And finally -- 

 13 JUDGE KRAVITZ: Plaintiff or the defense 

 14 side? 

 15 MR. GLAESSNER: On the defense side. 

 16 And then, finally, I am a member of several 

 17 national defense organizations, DRI, FDCC that has

 18 other members here today, but also I'm past president 

 19 of the Association of Defense Counsel of Northern 

 20 California and Nevada.

 21 Let me speak, if I can, to three issues, one 

 22 concerning Rule 26 and the other two regarding Rule 

 23 56. I strongly support these changes to Rule 26 and I 

 24 only want to speak to a very small issue that I see 

 25 lurking perhaps in the proposed rule change. This has 

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 1 to do with the subject of what I will call non-retained 

 2 experts under Rule 26(a)(2)(C). 

 3 The rule as proposed would provide that 

 4 non-retained experts would be identified along with 

 5 first a description of the subject matter of their

 6 testimony and, second, with a summary of their facts 

 7 and opinions. Non-retained experts in state court in 

 8 California have been disclosed for a number of years 

 9 now. We're not required to provide any descriptive 

 10 information, but it's an important facet of expert

 11 witness disclosures in California. 

 12 The point that I wish to make is this, and you 

 13 have to distinguish between non-retained experts who 

 14 are an employee of a defendant company or plaintiff 

 15 company versus not employed: When a non-retained 

 16 expert is employed I think everything that's proposed 

 17 in this rule makes sense. It is not problematic 

 18 because the lawyers will have the ability to ascertain 

 19 the information. 

 20 When the non-retained expert, however, is not 

 21 employed by the party who is identifying that expert, 

 22 such as, for example, when a defendant chooses to 

 23 identify a plaintiff's treating doctor or a federal or 

 24 state investigator such as an NTSB investigator, the 

 25 lawyer who prepares the disclosure may well not know, 

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 1 in fact, may be ethically precluded from not knowing at 

 2 that stage what that person's opinions will be. And 

 3 the only way we find that out in the state court many 

 4 times is to take the deposition of a plaintiff's 

 5 treating doctor for a defendant or, whether plaintiff 

 6 or defendant, subpoenaing and taking depositions of 

 7 neutral investigators, federal and state.

 8 So while I support all the rule changes in 26 

 9 and I support this one, I wish to simply point out that 

 10 there is one carve-out where a lawyer in good faith 

 11 would be trying to comply with this rule yet might not 

 12 be able to comply with this rule because the witness's 

 13 knowledge, the witness's opinions might not at that 

 14 point be within that lawyer's reservoir of knowledge. 

 15 JUDGE KRAVITZ: But the opinions would be 

 16 known to the lawyer at some point before the lawyer 

 17 designates the person -- I mean, in other words, in the 

 18 treating physician example, let's say you felt that you 

 19 couldn't talk to the doctor, the doctor wouldn't talk 

 20 to you, to take the deposition. The doctor says this 

 21 person is, you know, completely healthy and doesn't 

 22 have a problem at all, then you would designate the 

 23 treater as your expert and presumably cite to the 

 24 deposition.

 25 MR. GLAESSNER: That would be true assuming 

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 1 that the doctor had been deposed in your case. It's 

 2 not always the case, though, for reasons of cost and 

 3 other reasons, availability, that that doctor might not 

 4 be -- 

 5 JUDGE KRAVITZ: Help me to understand that. 

 6 SO you don't know what the treater is going to say. 

 7 The treater for all you know is going to say that this 

 8 person is completely disabled and it's your client who 

 9 did it, and you would nominate that person as your own 

 10 expert? 

 11 MR. GLAESSNER: Out of excessive caution, we 

 12 do that sometimes in state court because we then depose 

 13 them under the state court rules. So we want to 

 14 preserve the right to rely on that person even though 

 15 we may under certain circumstances withdraw them or not 

 16 depose them.

 17 JUDGE KRAVITZ: From a timing -- 

 18 MR. GLAESSNER: I'm sorry? 

 19 JUDGE KRAVITZ: It's a timing issue.

 20 MR. GLAESSNER: It's a timing issue in large 

 21 part, yes. 

 22 JUDGE KRAVITZ: It sounds like that.

 23 MR. GLAESSNER: So small point regarding 

 24 Rule 26. Let me turn to Rule 56 briefly.

 25 First and foremost, I join in many others who 

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 1 said it far more eloquently than I will that I am 

 2 concerned with the change that has occurred in Rule 56, 

 3 changing "shall" to "should", and in my view either 

 4 should revert to "shall" or for reasons that I 

 5 understand stylistically should be changed to "must." 

 6 I won't burden this committee with an 

 7 explanation of all my reasons. I think they've all 

 8 been fairly well stated by various people before me. I 

 9 do think there are some significant differences, 

 10 though, in the text for Rule 12 and the text of Rule 56 

 11 as it was written that should not be lost through the 

 12 stylistic changes that are occurring. 

 13 And I would also point out one thing in 

 14 responding in part to comments made this morning. 

 15 Cases at the Rule 12 stage are based upon noticed 

 16 pleading. Very little is required under federal rules 

 17 of state claim under noticed pleading. By the time the 

 18 case reaches summary judgment stage the case has been 

 19 through, in my experience, extremely thorough 

 20 discovery. 

 21 It is a case that is already become quite 

 22 expensive for the parties and a case in which, if 

 23 summary judgment is not resolved or at least narrow the 

 24 case significantly, will result in a lengthy trial, 

 25 particularly in an employment case. I will tell you 

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 1 most of my cases are in the three- to five-week range 

 2 in terms of trials.

 3 JUDGE KRAVITZ: In employment cases? 

 4 MR. GLAESSNER: In employment cases, yes. 

 5 JUDGE ROSENTHAL: Single party cases? 

 6 MR. GLAESSNER: Single party cases, yes. 

 7 Sex/gender discrimination, age, harassment, 

 8 retaliation. Usually those cases have five to eight 

 9 claims. 

 10 And summary judgment is an important tool, 

 11 even if summary judgment is not granted in full, to 

 12 narrow down the case because if you can get the issues 

 13 confined, even for a trial, then it shapes the entire 

 14 duration of the trial and the nature of the evidence, 

 15 what evidence might be admissible. It's an extremely 

 16 useful tool even though it may not result in complete 

 17 summary judgment.

 18 But the consequence of summary judgment being 

 19 denied, and we could debate endlessly whether denial is 

 20 appropriate or not -- that's not the purpose of this 

 21 committee -- is for every defendant there is a 

 22 tremendous cost to going forward to trial. I would 

 23 tell you from my own experience in recent years in

 24 employment litigation that -- and I represent primarily 

 25 public entities and non-profits, not Fortune 500 

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 1 corporations, that the cost of a trial for our practice 

 2 is conservatively $50,000 and often well more than

 3 $100,000. It's a very expensive proposition. 

 4 And so when others speak to you today about 

 5 this issue of "shall" or "must" and so on and so forth, 

 6 there's a real -- there's a real issue, there's a real 

 7 cost to defendants. And not always is it Fortune 500 

 8 companies. Oftentimes these are non-profits. These 

 9 are companies that work on a shoestring and they are 

 10 looking at you and saying, "How can I afford to go

 11 forward and defend this case?" 

 12 "Well, your remedy is summary judgment. You 

 13 can't get out at the Rule 12 stage, but you do have an 

 14 opportunity at summary judgment and we'll give it our 

 15 best shot."

 16 Let me turn to my third -- yes? I'm sorry. 

 17 Judge Walker?

 18 JUDGE WALKER: Yes. If I can, Mr. Glaessner. 

 19 Why isn't the answer to your point that you are making 

 20 this argument in the wrong forum in that what we say 

 21 the substantive standard is for granting or denying 

 22 summary judgment doesn't matter? What matters is what 

 23 the Supreme Court provides and what the circuit courts 

 24 interpreting Supreme Court opinion provide and not the 

 25 text of the Federal Rules. 

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 1 So why does it matter? Couldn't we say 

 2 "should," "must," "shall" or whatever?

 3 MR. GLAESSNER: Well, I think it matters for 

 4 several reasons. First of all, I think it matters

 5 because we have lived with and -- our practice, our 

 6 federal practice has been geared toward what is in Rule 

 7 56 for many, many years. There was a strong historical 

 8 depth behind Rule 56 and the word "shall" appears 

 9 there, which doesn't, as you pointed out earlier this 

 10 morning, appear in Rule 12. There is a distinction 

 11 there. 

 12 It also in Rule 56 says that summary judgment 

 13 shall be granted -- or should be granted now when a 

 14 party is entitled to judgment as a matter of law.

 15 It's always been my training in 26 years that 

 16 when a party is entitled to judgment as a matter of 

 17 law, that is -- that is a mandatory directive. That is 

 18 not a discretionary "should." I respectfully believe 

 19 that, although I'm sure that many feel that this change 

 20 is stylistic only, I stand before you and tell you I 

 21 believe that there's always a great potential outside 

 22 of this room and this committee that some will perceive 

 23 this as more of a sea change in Rule 56. 

 24 I've served on a state judicial council 

 25 committee where we all have our opinions amongst 

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 1 ourselves. We were all very reasonable people, very 

 2 competent lawyers and judges. And yet at the same time 

 3 we all spoke about how many people outside of the room 

 4 or the committee might not be aware of how we view

 5 things. And I'm concerned about that, quite frankly. 

 6 I don't know if that answers your question, 

 7 but that's my immediate response to it. 

 8 JUDGE WALKER: So if I understand what you're 

 9 saying is that it's true that the language of the rule 

 10 does not determine the substantive standard, but there 

 11 may be a perception in the bar and in the public that 

 12 the language of the rule does have an effect on the 

 13 standard that is used to grant or deny these motions. 

 14 Is that it?

 15 MR. GLAESSNER: Well, I don't think it's 

 16 limited to perception. I think if you look back 

 17 historically, the language in the rule of "shall" is 

 18 significant in how some cases have decided summary

 19 judgment motions. I don't know that I would 

 20 necessarily concur that it's solely a matter of 

 21 perception.

 22 Now, let me turn, if I can, to my third point 

 23 very briefly. This has to do with what's been talked 

 24 at great length today, point-counterpoint. Being a 

 25 practitioner in California, I've grown up with this 

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 1 practice. It's called "separate material statements of 

 2 fact" in our local jurisdiction.

 3 I, frankly, am not a tremendous advocate of 

 4 this process, but at the same time I do think it serves 

 5 one very valuable function. I think I'll explain it 

 6 this way.

 7 Separate statements are an adjunct to 

 8 briefing. The mosaic, as has been said before, is

 9 going to be the opposition brief, but the separate

 10 statement tells the court and tells everyone these are 

 11 the facts, these are the only facts that matter for the 

 12 purpose of this motion.

 13 So to take a very simple example and why I 

 14 believe separate statements are useful, let's take a 

 15 garden variety sexual harassment lawsuit. Let's assume 

 16 that the evidence in discovery reveals the following: 

 17 That the plaintiff testifies that there were three acts 

 18 of -- discrete acts of sexual harassment that occurred 

 19 on the job and only three and we've got that through 

 20 the testimony of the plaintiff. 

 21 So when the defendant brings the motion, the 

 22 defendant wants to be clear that there are only three 

 23 acts. The separate statement allows for clarity. It 

 24 allows for focusing. It allows for everyone to start 

 25 on the same page. Here are the three acts of sexual 

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 1 harassment.

 2 If you don't have that separate statement, 

 3 then you always run the risk that the plaintiff will 

 4 try to suggest, well, maybe there are other acts that 

 5 constituted sexual harassment. Even though their 

 6 testimony has been given the record should be clear. 

 7 And so the real value in the separate 

 8 statement is providing focus and providing structure to 

 9 the motion that follows. The plaintiff can, of course, 

 10 always add additional facts as the rule proposes, and 

 11 that happens in California all the time. But at the 

 12 end of the day a clean clear motion for summary 

 13 judgment in that case benefits by having the separate 

 14 statement list the three acts that the plaintiff 

 15 contends constituted sexual harassment and then, as we 

 16 know, the court can then apply the law to that and

 17 determine is this sufficiently severe or pervasive. 

 18 It's a very straightforward, structured way to present 

 19 a motion.

 20 Comments have been made today about 500 

 21 separate statements of fact, hundreds of pages. I have 

 22 not, Your Honor -- I suppose I'm going to plead 

 23 ignorance on that, but it strikes me that even if that 

 24 occurs it's the most counterproductive way for the

 25 defendant to bring a summary judgment motion that I've 

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 1 ever heard of in all of my years.

 2 The idea as expressed by our Governor Jerry 

 3 Brown when he was Governor 30 something years ago for a 

 4 defendant is "less is more." The fewer facts you need 

 5 to put before the court and claim are material facts 

 6 that are not in dispute that are necessary for the

 7 defendant to win, the stronger the motion is going to 

 8 look. If someone brings 500 facts that they claim are 

 9 material facts before the court, frankly, they haven't 

 10 been trained in our firm, and God bless them.

 11 So those are my comments and I'd be glad to 

 12 answer any questions.

 13 JUDGE KRAVITZ: Mr. Marcus.

 14 PROFESSOR MARCUS: I'm sorry to return you to 

 15 your first point, but just so I'm clear on what you 

 16 said about Rule 26(a), disclosure of something about 

 17 the expected opinion testimony of someone who will

 18 testify as an expert but isn't a retained expert.

 19 Background there is that there was a concern, 

 20 particularly from the plaintiff's side, say, regarding 

 21 the treating doctor who may often offer such testimony 

 22 and the difficulty of getting anything like a complete 

 23 report from the treating doctor, which I think responds 

 24 to some of your concerns, though, from the other side, 

 25 if you read me. 

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 1 Am I right in understanding that what you 

 2 would propose is that the plaintiff have no obligation 

 3 whatsoever to disclose anything about the expected

 4 opinion testimony of the plaintiff's treating doctor? 

 5 MR. GLAESSNER: Well, I can tell you in 

 6 California there is no requirement-specific disclosure, 

 7 but what I think should apply under these Federal Rules 

 8 that you're reviewing is that any party should be 

 9 required to state the subject matter of their 

 10 testimony. Subject matter should not be a question. 

 11 You presumably know what the general subject matter of 

 12 that testimony may be. 

 13 It may be that if you have an uncooperative 

 14 treating doctor, the plaintiff's lawyer may not know 

 15 the opinions in that case, although I think that's

 16 fairly unusual in my experience. It's far more common 

 17 if I was saying, though, that the defense lawyer has no 

 18 opportunity to know the plaintiff's treating doctor's 

 19 opinions unless there's been a deposition 

 20 predisclosure.

 21 PROFESSOR MARCUS: Well, I guess, to follow 

 22 up, one of the things that I can remember some lawyers 

 23 saying, I believe generally defense side lawyers, was 

 24 sometimes, "If you just give me a sketch of the nature 

 25 of the opinions the plaintiff's treating doctor is

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 1 going to offer, I don't need to take a deposition; but 

 2 if you don't tell me what those are, I have to take a 

 3 deposition." 

 4 Rule 26(a) permits the other side to take that 

 5 deposition, and I'm a little surprised that the 

 6 suggestion that somehow the sketch that the rule tries 

 7 to be cautious about, a summary of the facts and 

 8 opinions to which the witness is expected to testify, 

 9 asks too much.

 10 MR. GLAESSNER: It may only in those rare 

 11 cases. I can see that I may be dealing with an niche 

 12 situation, not the mainstream. I'm just pointing out 

 13 that there may be situations in which a defendant or a 

 14 party in excess of caution wants to identify treating 

 15 doctors without knowing what their opinions are because 

 16 they have not been deposed through a deposition 

 17 process. Otherwise, I agree with the rule as written. 

 18 I'm not trying to suggest that the rule should be 

 19 rewritten. I'm just pointing out there may be a 

 20 practice area where there may be an exception.

 21 PROFESSOR MARCUS: Thank you.

 22 JUDGE KRAVITZ: All right. We're going to -- 

 23 all right. Before we take our luncheon break we're 

 24 going to hear from Mr. Zappala. 

 25 You have the distinction or the difficult task 

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 1 of keeping us from our lunch. 

 2 MR. ZAPPALA: Understood. It's not the first 

 3 time. It's like in trial when you look at the clock 

 4 and you realize that starting a long cross-examination 

 5 to going to kill the jury. So you don't do that. And 

 6 I won't do that before this committee. 

 7 First of all, I do believe that the committee 

 8 does share from experience of counsel. I've been 

 9 practicing law for 28 years. I've practiced in a small 

 10 firm. I'm with Lewis Brisbois at this point. I've 

 11 handled personal injury cases for plaintiffs. I'm

 12 currently the chair of commercial litigation practice 

 13 in a firm with 700 lawyers, and I've seen this element 

 14 from both sides.

 15 I am a proponent -- as you might gather from 

 16 the credentials that I've told you about, having worked 

 17 on the defense side, having represented commercial

 18 interests, I am a proponent of this "must" language in 

 19 the summary judgment statute.

 20 In California we have had that "shall," 

 21 "people must." We've had that standard. I don't think 

 22 that it's been a disservice to the bench or the bar. I 

 23 think the community at large in commercial litigation 

 24 cases in particular but in other types of civil 

 25 disputes benefit from knowing that there's a 

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 1 consequence to having a case decided at summary 

 2 judgment. 

 3 I found that that is a very strong incentive 

 4 on the part of the litigants to carefully look and

 5 evaluate the merits of the cases when they are faced 

 6 with that consequence of the summary judgment.

 7 And in many examples in my experience, for 

 8 instance, my adversary can't stipulate. He can't just 

 9 cave in. So if I lay the case out and the litigants 

 10 know that there's going to be a winner and there's

 11 going to be a loser because of this "must" component in 

 12 the summary judgment, there is an opportunity to 

 13 resolve that case rather than spend the litigants'

 14 resources and the court's resources where they are not 

 15 necessary.

 16 In the context of a commercial litigation 

 17 case, we do have noticed pleading. The kitchen sink 

 18 comes in. Pare that case down. Get rid of the points 

 19 that really don't matter. Do it under the 

 20 circumstances where everybody is informed that there is 

 21 a "must" consequence to that. If a claim is going to 

 22 be pursued and I can eliminate it through evidence, 

 23 through principles of law, there are no nuances that 

 24 allow that to be gone in the summary judgment process. 

 25 It refers back to the mosaic.

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 1 Our system of justice needs to be nurtured and 

 2 summary judgments trim away the dead wood and leave a 

 3 healthy tree for the judicial process as opposed to 

 4 having the component of let's throw it all up and see 

 5 what sticks. I do think that this is a principle that 

 6 is worthy of protection in a mandatory approach and a 

 7 mandatory fashion.

 8 In terms of the point-counterpoint or 

 9 statement of disputed and undisputed facts, again, it 

 10 was interesting to hear from the judge in Alaska 

 11 saying, "Look, if the thing ain't broke, don't fix it." 

 12 In California we're looking at it from the other side. 

 13 We've had the separate statement approach for going on 

 14 two decades and, again, there's something very 

 15 persuasive in having very identified points of fact. 

 16 I can give you a really quick example in some 

 17 complex liability product cases. If there is a 

 18 component of a product that you use to seal a pipe that 

 19 a plaintiff is claiming is -- has benzene in it, and I 

 20 can demonstrate because I have the chemist who -- who 

 21 created this product who had the test done 35 years 

 22 ago, there's no benzene in there, why not get that

 23 party out of the lawsuit? And if there's a benzene 

 24 exposure, it should not include every product this guy 

 25 drove by in 20 years of the work history. 

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 1 Another product liability example is product 

 2 identification. This comes up in a myriad of cases, 

 3 asbestos cases, just run-of-the-mill product liability 

 4 cases. If a defendant can demonstrate through a claim 

 5 to plaintiff that you can look at this widget, this 

 6 component, and a certain stamping pattern is not there, 

 7 then it cannot be sourced to that defendant, that is a 

 8 reason that you need a summary judgment procedure.

 9 And you can lay that out in a 

 10 point-counterpoint fashion that makes it abundantly 

 11 clear what the material fact is. The material fact is 

 12 that the plaintiff cannot identify a certain defendant 

 13 as being the manufacturer of the product. It's 

 14 elemental if you lay it out very succinctly, very 

 15 directly. It's a material fact as a matter of law that 

 16 the defendant is entitled to a judgment. 

 17 And it's for those reasons that I --

 18 JUDGE KRAVITZ: Judge Koeltl? 

 19 JUDGE KOELTL: You live with 

 20 point-counterpoint in state court practice and not in 

 21 federal practice? 

 22 MR. ZAPPALA: Yes, yes. 

 23 JUDGE KOELTL: Does that raise any problems 

 24 for you? 

 25 MR. ZAPPALA: I just think that in the state 

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 1 practice it has been in my experience, at least in the 

 2 Northern District, notwithstanding what Judge Wilken 

 3 said, I -- I went back and found a statement of facts 

 4 in a brief that I filed 13, 14 years ago.

 5 The courts have looked at -- I think have 

 6 looked at it in that way, in not in a very regimental 

 7 box. The widget was manufactured in Waukeshaw and then 

 8 the supporting evidence is not there. I do think we do 

 9 need a more uniform approach and I think 

 10 point-counterpoint provides that as opposed to, well, 

 11 maybe we'll do it in this case, maybe we won't in 

 12 another case.

 13 So I think we should break for lunch unless 

 14 you have any questions.

 15 JUDGE KRAVITZ: Professor Marcus won't let you 

 16 go.

 17 PROFESSOR MARCUS: I'm looking for an answer 

 18 of no. I looked at your written statement and I ask 

 19 this question because of the heading over the part

 20 about our witness list where you appear which says you 

 21 were going to talk about Rule 26, also. I didn't see 

 22 anything about that. So I just want to make sure.

 23 MR. ZAPPALA: You're right and it is no. It 

 24 was my error.

 25 PROFESSOR MARCUS: Good. Thank you.

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 1 JUDGE KRAVITZ: Very good. Thank you. 

 2 MR. ZAPPALA: Thank you.

 3 JUDGE KRAVITZ: Thank you very much. 

 4 Okay. So we're going to break for lunch, and 

 5 we're going -- so we have a lot more witnesses. So 

 6 we're going to take a 45-minute lunch. So we're going 

 7 to be starting again at ten of 1:00. 12:50. All 

 8 right? 

 9 (Whereupon, a lunch recess was taken from 

 10 12:04 to 12:53.)

 11 ---oOo---

 12

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

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 1 San Francisco, California February 2, 2009

 2 AFTERNOON SESSION

 3 JUDGE KRAVITZ: Well, I said that we must 

 4 start at ten of and it just goes to show you how much 

 5 power is to the word "must."

 6 So Mr. Williams?

 7 Thank you. I'm keenly aware of how many 

 8 billable hours are sitting in this room and I thank you 

 9 very, very much for your patience. 

 10 MR. WILLIAMS: We're happy to do it, Your 

 11 Honor, and coming from a locale where it was 10 degrees 

 12 when I left, any excuse to come to San Francisco I will 

 13 jump at. 

 14 My name is Marc Williams and I'm an attorney 

 15 practicing in Huntington, West Virginia and I'm 

 16 currently serving as president of DRI. I'm here to 

 17 speak on behalf of Rule 26 and Rule 56. I would like, 

 18 if I could, to go to Rule 26 first.

 19 We are supportive of the amendments, 

 20 particularly those that address the question of 

 21 privilege as it relates to retained experts and the 

 22 procedures that have been set forth for the handling of 

 23 expert reports. I would like to address specifically 

 24 today, in addition to what's in my written submissions, 

 25 the scenario where you have non-retained experts, 

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 1 whether it be an employee of a corporate defendant or a 

 2 corporate plaintiff, a person who has knowledge that 

 3 arguably might rise to the level of expert testimony 

 4 but who's not employed by one of the parties, who would 

 5 be designated as an expert under the provision of the 

 6 rule that allows for a description of the nature of 

 7 their testimony, which I think is very helpful.

 8 I would ask, however, that the committee 

 9 consider extending the protection that has been drafted 

 10 in the amendment for retained experts to protect the 

 11 communications between counsel and retained experts, 

 12 that that be extended to non-retained experts as well 

 13 for a couple of specific reasons.

 14 First of all, the most likely occasion for a 

 15 corporate defendant to be using a non-retained expert 

 16 would be where an employee is positioned because of 

 17 their knowledge obtained through the course of their 

 18 employment that they be in a position to testify as an 

 19 expert at trial, whether it be on an engineering matter 

 20 or a pharmaceutical case regarding scientific issues. 

 21 It's important that there be protection of the 

 22 communications between counsel and that witness. 

 23 Normally, if it's a corporate defendant, there would be 

 24 an argument that there could be an extension of 

 25 protection to an employee, but, however, I often see 

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 1 the case in my practice where I'm calling upon retired 

 2 individuals who have a wealth of knowledge about the 

 3 subject matter of litigation, no longer employed by the 

 4 corporate defendant, but in a position to give very 

 5 helpful expert testimony at trial.

 6 Under those circumstances -- 

 7 JUDGE KRAVITZ: You don't retain them. They 

 8 volunteer.

 9 MR. WILLIAMS: That's correct. Generally it 

 10 is done with permission. Oftentimes the circumstance 

 11 is where they may have an ongoing relationship, a 

 12 consulting relationship or whatever with the company. 

 13 They certainly don't testify on a regular basis, but 

 14 because of that niche of knowledge that they have they 

 15 would be in a position to provide expert testimony.

 16 I have seen the argument made in those cases 

 17 that the normal protection that I would be able to

 18 claim if I was working with a corporate employee who I 

 19 would put up as a witness does not extend once they -- 

 20 once that employee leaves the actual employment of the 

 21 company. And I think that that can be solved by 

 22 extending the protection, communication protection to 

 23 non-retained experts just in the same way as it is for 

 24 retained experts. It provides consistency across the 

 25 board and I think that would be valuable.

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 1 PROFESSOR MARCUS: When you say "normal 

 2 protection," where does that normal protection come 

 3 from? 

 4 MR. WILLIAMS: Well, perhaps I misspoke. The 

 5 protection that would exist under the proposed 

 6 amendments that would provide -- well, maybe I'm 

 7 misunderstanding your question.

 8 PROFESSOR MARCUS: Well, I took you to mean 

 9 something else. I thought you were talking about 

 10 attorney-client or some other protection that would 

 11 exist if this person were an employee but for some

 12 reason is not available because this person is retired 

 13 and is no longer -- 

 14 MR. WILLIAMS: Well, normally you would be 

 15 entitled to some level of attorney-client protection if 

 16 their employee -- if you represent the corporate 

 17 defendant and they are an employee, there is some 

 18 limited protection that would be available to them as 

 19 an employee if they are testifying regarding that as 

 20 within the scope of their employment. 

 21 Subject to some dispute I'll acknowledge and 

 22 there's a variance as to whether or not if they had 

 23 individually retained counsel that it would be the

 24 same, but nonetheless once they have left the 

 25 employment, any argument that we might have 

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 1 evaporates. 

 2 PROFESSOR MARCUS: Well, I took you to be 

 3 talking about that, and what I'm trying to point out is 

 4 whether what you're saying is that you would like a 

 5 rule to take up where the attorney-client privilege 

 6 leaves off.

 7 MR. WILLIAMS: Exactly.

 8 PROFESSOR MARCUS: You're, in essence, asking 

 9 for us to undertake something that the attorney-client 

 10 privilege doesn't provide for already? 

 11 MR. WILLIAMS: That's exactly it. Essentially 

 12 it would be a work product protection that would 

 13 protect the communications between these employees when 

 14 they -- former employees when they are being prepared 

 15 for litigation. So it would protect the communications 

 16 that I would have with a witness that I would be 

 17 preparing for testimony at trial even in a circumstance 

 18 where they were not a normally retained expert. 

 19 Now, frankly -- 

 20 JUDGE KRAVITZ: Well, you can solve that by 

 21 just simply retaining them. Right? I mean, you don't 

 22 have to retain them for $100,000. You can retain them 

 23 for costs or 5,000 or a thousand dollars and then you 

 24 have all the protection that you would have for a 

 25 retained expert. 

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 1 MR. WILLIAMS: That's true. But believe it or 

 2 not, I have had some witnesses who prefer not to be 

 3 retained.

 4 JUDGE ROSENTHAL: Are they specially 

 5 employed? Is there some sort of employment 

 6 arrangement? I'm just trying to figure out why --

 7 MR. WILLIAMS: There's some circumstances 

 8 where the nature of their ongoing relationship 

 9 precludes them or, as an example, I have had cases

 10 where I have utilized a witness from a different 

 11 company but who had similar knowledge regarding the 

 12 issue that is in dispute and because of their 

 13 relationship with the other company they were not able 

 14 to be retained. 

 15 But notwithstanding that question of whether 

 16 or not it would solve it through retention, any 

 17 non-retained witness ought to be able to talk to 

 18 counsel and achieve the same sort of protection to

 19 those communications as retained witnesses. 

 20 Yes, sir? 

 21 JUDGE WEDOFF: How does your rationale then 

 22 apply to any fact witness that you might want to talk 

 23 to? 

 24 MR. WILLIAMS: Well, the difference is is that 

 25 a fact witness is giving facts and an expert witness is 

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 1 giving opinions. Therefore, there is a difference in 

 2 the quality and the scope of their testimony.

 3 JUDGE KRAVITZ: But often these non-retained 

 4 experts could be both. Right? Could be both fact

 5 witnesses and give opinion.

 6 MR. WILLIAMS: And sometimes they do. For 

 7 instance, in the example of my understanding is that in 

 8 San Antonio, Judge Campbell raised the question of

 9 treating physicians and how that issue would play out. 

 10 I can tell you that it may be possible to excise a

 11 provision to make a -- to account for those witnesses 

 12 who have a blended fact witness responsibility and

 13 expert witness responsibility and, to the extent that 

 14 there could be language that would help accomplish

 15 that, we'd be happy to try to provide that to the 

 16 committee. 

 17 In regards to Rule 56, I would like to address 

 18 the "shall" versus "must" dispute. And I want to,

 19 first of all, raise the question or address the 

 20 question that was raised this morning about the 

 21 incidents of mandamus and the likelihood that if the 

 22 committee were to adopt a rule that says summary 

 23 judgments must be granted in cases where there are no 

 24 disputed issues of material fact, that that would 

 25 increase the likelihood that unsuccessful parties 

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 1 looking for summary judgment would be seeking 

 2 mandamus. I don't see that as likely. 

 3 In my practice, a lot of which is in federal 

 4 court, the process of discussing even interlocutory 

 5 appeals are very limited. It is something that almost 

 6 never comes up in terms of mandamus simply because it 

 7 is so unfavored and the risks are so high. 

 8 I think the consequences, however, for a 

 9 corporate defendant or really any unsuccessful 

 10 movement -- movant in a case of where "must" would be 

 11 present would be that you would have a much better

 12 possibility of getting relief at the Court of Appeals. 

 13 I mean, if the standard is "must," if the wording is 

 14 "must," and understanding Judge Baylson's arguments 

 15 regarding that the standard hasn't changed, but if the 

 16 wording is "must" and you have a legitimate factual 

 17 scenario where there is no dispute and the court for 

 18 whatever reason exercises discretion and says, no, this 

 19 case needs to be tried for some reason, I think that 

 20 the responsible attorney would be advising their 

 21 client, "No. Don't go up and try and get a mandamus. 

 22 Consider that issue one that you can take up on 

 23 appeal. If we have protected the record, then the

 24 appellate court will have an opportunity to review

 25 that."

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 1 JUDGE KRAVITZ: After the trial.

 2 MR. WILLIAMS: After trial.

 3 JUDGE KRAVITZ: And the argument would be the 

 4 record at trial established all these facts, but 

 5 actually we should have been granted summary judgment 

 6 if it's based on the summary judgment record? 

 7 MR. WILLIAMS: Well, you could have the 

 8 option, for instance, if -- it would depend on how the 

 9 trial develops, but I have seen appeals go up after 

 10 trial where unsuccessful movants for summary judgment 

 11 claimed that there was error in failing to grant the 

 12 summary judgment because the facts as it turns out in 

 13 trial were the same, that there was no difference 

 14 between the assumed facts for the purposes of the 

 15 motion and the facts that were ultimately resolved

 16 during the trial.

 17 JUDGE KRAVITZ: Right. And then you should 

 18 get judgment as a matter of law at the close of the 

 19 evidence.

 20 MR. WILLIAMS: Correct. And then it's usually 

 21 the case that that doesn't happen either. 

 22 I would also like to address the question of 

 23 whether or not we have a change in the actual standard 

 24 that Judge Baylson raised and Judge Rosenthal also

 25 raised. It occurs to me that when we had a change in 

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 1 language that goes from "shall" to "should," even if it 

 2 is designated as largely stylistic, when we insert the 

 3 possibility of discretion into that scenario we are 

 4 creating doubt. 

 5 And, in fact, in my practice I have seen, not 

 6 from judges but from practitioners, making the argument 

 7 throughout the preparation of a case for trial and

 8 through mediation and motion practice that there 

 9 actually is a difference in the standard now, that

 10 there is -- the court should exercise discretion. 

 11 While recognizing what the Celotex trilogy 

 12 still says, arguments are being made to district courts 

 13 that I have seen that the court should exercise 

 14 discretion and allow the case to go to trial for a

 15 various number of reasons, whether it's inferences that 

 16 should be drawn or should be preserved with the jury, 

 17 whatever it might be. And, in fact, I have one case in 

 18 front of the Fourth Circuit Court of Appeals now where 

 19 that issue is raised. Luckily, that judge declined to 

 20 exercise that discretion. So we'll see if the Court of 

 21 Appeals agrees. 

 22 But if we are not changing the standard, if 

 23 the standard is the same that it has always been as it 

 24 came out of Celotex, then we are allowing the problem 

 25 to exist when we change the language to create that 

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 1 possibility of doubt. Whether it is perception among 

 2 the trial bar or the public at large, I don't know that 

 3 that's particularly relevant. The issue is is that we 

 4 have created doubt as to the certainty of the 

 5 entitlement for summary judgment.

 6 MR. KEISLER: Mr. Williams? 

 7 MR. WILLIAMS: Yes. 

 8 MR. KEISLER: Can you explain what the 

 9 argument that's being made before the Fourth Circuit 

 10 is? Is it that the district court denied summary 

 11 judgment -- or granted summary judgment and the 

 12 non-movant is saying to the Court of Appeals that the 

 13 district court should exercise its discretion to deny 

 14 summary judgment even though summary judgment might 

 15 otherwise have been justified? 

 16 MR. WILLIAMS: Essentially -- the oral 

 17 argument was this past week. Essentially the argument 

 18 that's being raised is not directly stating that the 

 19 court should have exercised discretion except to this 

 20 extent: It is a product identification issue that was 

 21 the basis for summary judgment in a chemical exposure 

 22 case and the argument is that the court should have 

 23 exercised the opportunity to let all inferences that 

 24 may come from certain testimony go to the jury even 

 25 though those -- the facts underpinning those inferences 

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 1 was not -- were not in dispute.

 2 So to that extent they were taking the 

 3 position that the court has discretion for that set of 

 4 facts to allow the case to go to the jury 

 5 notwithstanding the fact that, although we're not a 

 6 point-counterpoint district, that there was really no 

 7 dispute as to the facts as presented before the court 

 8 for resolution in that motion.

 9 JUDGE BAYLSON: Wouldn't you say --

 10 JUSTICE SHEPARD: I'm sorry. Go ahead. 

 11 JUDGE BAYLSON: Well, this is different. Do 

 12 you want to follow up on that? 

 13 JUSTICE SHEPARD: No, on the same point. 

 14 It seems to me quite an ordinary idea that 

 15 where different inferences can be drawn from the same 

 16 fact that might lead to a different outcome as applied 

 17 to law, that the movant doesn't win. Is there 

 18 something wrong with that idea?

 19 MR. WILLIAMS: Well, the district court made 

 20 the decision that the inferences that the plaintiff was 

 21 seeking to draw from the facts were not valid. They 

 22 were justified.

 23 JUDGE KRAVITZ: Were not reasonable? 

 24 MR. WILLIAMS: Were not reasonable.

 25 JUDGE KRAVITZ: The non-movant gets the 

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 1 benefit of all reasonable inferences. 

 2 MR. WILLIAMS: Right. 

 3 JUDGE BAYLSON: Let's go back to this question 

 4 of standards, of the changing standards.

 5 There's no doubt under the enabling act that 

 6 this committee and the other advisory committees can 

 7 propose procedural changes such as pleading standards 

 8 or discovery rules as we've been doing, but I think 

 9 Rule 56 is slightly different because it comes up close 

 10 to and some argue it impedes on the constitutional

 11 right to a jury trial. 

 12 So I think when we deal with Rule 56 we've got 

 13 to be very careful in distinguishing what might be

 14 purely procedural, which is point-counterpoint, for 

 15 example, and what is the choice of verbs which some 

 16 lawyers say are impinging on their right to a jury

 17 trial.

 18 Now, I think we all agree that in the trilogy 

 19 the Supreme Court said there are no genuine issues of 

 20 fact. Summary judgment is appropriate, but in one

 21 case, the Anderson case, the court said just in two 

 22 different bases, you know, on the one hand, you've got 

 23 to do it; on the other hand, you, the district court, 

 24 don't have to.

 25 So we're in a little bit of a no man's land, 

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 1 in my view, and I think that is what is, you know,

 2 causing a lot of these problems. And I think that to 

 3 the extent -- at least some have said and some this 

 4 morning have said that using words like "must" 

 5 impede -- takes the judge too close to the deprivation 

 6 of the Seventh Amendment right because that may be a 

 7 reason -- why a judge may have a good reason why he or 

 8 she wants to preserve that jury trial right even though 

 9 technically there may not be any disputed issues of 

 10 fact. 

 11 Do you have any comment on that? 

 12 MR. WILLIAMS: Well, I understand that 

 13 argument and I've seen it in some of the papers that 

 14 have been presented and I've heard it mentioned briefly 

 15 this morning. I think the way to resolve that 

 16 potential problem is by carefully drafting the note to 

 17 make sure that to the extent that you -- 

 18 JUDGE BAYLSON: Is that rule making by note 

 19 writing? 

 20 MR. WILLIAMS: Well, all of us use the notes 

 21 as an aid for the interpretation or the understanding 

 22 of this process. It's something we rely on and it's an 

 23 opportunity that we have to sort of understand a little 

 24 bit more of what goes on in this process.

 25 If there is some concern about infringing upon 

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 1 a Seventh Amendment right or violating the rules and 

 2 enabling act provisions, I think that it would be 

 3 necessary to explain in the note that the change from 

 4 "should" to "must" is intended not to change the 

 5 standard but to clarify the fact that the change from 

 6 "shall" to "should" was nothing more than a stylistic 

 7 change and, therefore, we are not infringing upon an 

 8 individual's right to have a trial heard by jury but 

 9 only in those cases where there is really nothing for 

 10 the jury to hear. 

 11 I mean, we do have the right to trial by jury, 

 12 but realistically that right ends at the point that the 

 13 fact-finder has no facts to find. And under the 

 14 circumstances, whether it's a complex case or a simple 

 15 case, the judge has an obligation, in my opinion, to 

 16 grant summary judgment. 

 17 And in my practice I see it both as plaintiffs 

 18 and defense. In commercial cases increasingly 

 19 plaintiff's counsel are utilizing summary judgment as a 

 20 mechanism to hone the issues or to, you know, dispose 

 21 of the case short of trial. 

 22 JUDGE BAYLSON: Let me -- could I ask one more 

 23 question? 

 24 MR. WILLIAMS: Yeah. 

 25 JUDGE BAYLSON: Let's take the case in which 

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 1 there is a very novel issue of law and it's an 

 2 important issue of law and it has not been resolved by 

 3 the particular circuit in which the district judge

 4 sits. 

 5 The facts are not disputed, but this district 

 6 court judge thinks that this case is going to be 

 7 appealed and it's going to be an important appeal and 

 8 he or she thinks that the record would be better if the 

 9 facts were presented in a trial with direct exam, cross 

 10 exam and closing arguments where all the contentions 

 11 were made and jury interrogatories as well, which you 

 12 don't have on summary judgment.

 13 MR. WILLIAMS: Sure. 

 14 JUDGE BAYLSON: Is that a legitimate scenario 

 15 why a judge might deny summary judgment even though the 

 16 facts are undisputed? 

 17 MR. WILLIAMS: In my opinion, no. Regardless 

 18 of the judge's individual belief that the record might 

 19 be better developed at trial, which one could make the 

 20 argument that any record is better developed at 

 21 trial -- I don't know if that's necessarily the case. 

 22 I think oftentimes the record is more muddled at 

 23 trial. But once the court reaches the -- 

 24 JUDGE BAYLSON: That might give the appellate 

 25 court, you know, an out and say, well, we're not going 

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 1 to decide this issue because this record is too 

 2 muddled.

 3 MR. WILLIAMS: Well, I suppose the court has 

 4 the opportunity or the appellate court has the 

 5 opportunity upon reviewing the record to say that there 

 6 are some issues that need to be resolved and send it 

 7 back, but from the district court's perspective once 

 8 the court makes the decision that there are no material 

 9 issues of fact, at that point the -- the analysis 

 10 changes to what is the law that would be applied to 

 11 that -- to those facts even -- even if he or she 

 12 believed that it would be better to develop the record 

 13 through a trial.

 14 The last thing I'll add is on 

 15 point-counterpoint. I have to admit that I have 

 16 limited experience with this as the districts where I 

 17 practice do not have point-counterpoint, although I 

 18 have some limited experience in other districts. 

 19 I can tell you that my experience is that it 

 20 is a helpful aid. And, in fact, the procedure that is 

 21 proposed under the amendment is one that I often use, 

 22 even though I'm not in a district that requires it, in 

 23 the development of cases for -- to make a determination 

 24 whether or not I think a motion for summary judgment 

 25 should be filed or once one is filed to determine 

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 1 what's the best way to posture the facts in opposition 

 2 to that motion. 

 3 It seems to me that to the extent that there 

 4 are problems with the system as it exists in those

 5 districts that have point-counterpoint that have been 

 6 described here today, it can be resolved through 

 7 appropriate restrictions in terms of limits like we do 

 8 with page limits or some other local rule provision. 

 9 But under those circumstances we support it. 

 10 We think it provides value and it enables the lawyers 

 11 and the court to precisely identify the issues that are 

 12 in dispute. And I think, Judge Kravitz, you probably 

 13 described the mechanism for the use of it better than 

 14 anyone else. 

 15 So with that, I'll stop on that issue unless 

 16 there are other questions.

 17 JUDGE KRAVITZ: Thank you.

 18 MR. WILLIAMS: Thank you for letting me have 

 19 the opportunity to speak. I was supposed to speak in 

 20 DC and got waylaid by a trial. So I appreciate the 

 21 opportunity. 

 22 JUDGE KRAVITZ: No problem. DRI has been good 

 23 about sharing their views on our rules for a long time 

 24 and I thank you for doing so.

 25 Mr. Herling? Welcome sir.

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 1 MR. HERLING: Good afternoon. My name is Dan 

 2 Herling. I practice here in San Francisco with 

 3 Keller & Heckman in their San Francisco office. 

 4 Over the years I primarily have done defense 

 5 work for product liability. The last several years 

 6 I've expended to commercial litigation and intellectual 

 7 property. So I have taken the opportunity to file

 8 motions for summary judgment as the plaintiff as well 

 9 as the defense. I want to speak to you briefly today 

 10 about Rule 56 and 26.

 11 As far as the must/should debate, and I think 

 12 it's a fascinating one as I've sat here and listened to 

 13 it today, I want to tell you a real story about what's 

 14 happening in the courts, specifically in the Northern 

 15 District of California where I have several summary 

 16 judgment motions pending. And I think that the issue 

 17 is that though I fully appreciate the comments being 

 18 presented today that it's not a substantive rule, 

 19 that's the way it's become. 

 20 And perhaps for me personally "must" and 

 21 "should" I learned when I was a young officer in the 

 22 Navy that when my XO told me I should do something, 

 23 that was one thing, but when he told me I must do 

 24 something, that was something very different. 

 25 And what I've had experience with recently was 

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 1 the definition when we brought a summary judgment 

 2 motion against in the Northern District and we won, but 

 3 the argument was that because it was an issue of 

 4 whether there was sufficient facts for malice that the 

 5 Court had the discretion under this "should" standard. 

 6 Now, I know that that's not what the use notes 

 7 say and I know it's not what this committee meant, but 

 8 that's what I am hearing. Now, fortunately, the judge 

 9 disagreed and granted it, though I've been told that if 

 10 we don't settle the case it's going to be an issue in 

 11 front of the Ninth Circuit. So that's something that I 

 12 deal with on a daily basis.

 13 JUDGE ROSENTHAL: Was there an opinion in that 

 14 case? 

 15 MR. HERLING: Yes.

 16 JUDGE ROSENTHAL: And did it address that 

 17 argument? 

 18 MR. HERLING: Not -- it just said it's not 

 19 related. The court said that issue was raised, but the 

 20 issues of fact aren't sufficient to raise that issue in 

 21 his judgment.

 22 But it is a real thing. I mean, it's 

 23 happening out there. And for all of everyone's good 

 24 intentions about how it shouldn't be argued, it's being 

 25 argued. I'm not saying judges are buying the argument, 

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 1 but they are continuing to see it.

 2 The point-counterpoint. I've had the 

 3 opportunity to practice in the State of California as 

 4 well as the federal courts for all -- this is -- this 

 5 will be my 30th year of practicing law and I've gotten 

 6 very used to this point-counterpoint statement. And 

 7 it's not this uncaged boast that's been described, at 

 8 least in my experience. And, in fact, I think -- and I 

 9 think the idea was it's a tool. It's a tool to present 

 10 your side of the story. It's not the story. 

 11 And so my view is that the statement of 

 12 undisputed facts or the point-counterpoint as has been 

 13 described is not only a tool for the court. It's a 

 14 tool for counsel because it enables or ensures that 

 15 counsel hone their arguments. I mean, whether your 

 16 case is simple or complicated, you've tried enough

 17 cases, and certainly most people on this panel have, 

 18 that we know that most trials turn on five to ten,

 19 maybe eight main facts. 

 20 And I tell my -- if I have an associate that 

 21 hands me a first draft of a summary judgment motion and 

 22 there's more than twelve facts, I hand it back to them 

 23 and say that's a loser. It's just a reality. So I 

 24 don't think it's this terrible situation that would 

 25 occur. I do believe that it's a tool that, if used 

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 1 properly, enables everyone to really hone in front of 

 2 the judge and say, "These are the facts. This is what 

 3 we have to pay attention to in this case."

 4 JUDGE KRAVITZ: And so my understanding is 

 5 here in the federal court in San Francisco you don't 

 6 have to do this anymore? 

 7 MR. HERLING: That's correct.

 8 JUDGE KRAVITZ: But do you find -- I know 

 9 you've got to be a little careful as Chief Judge Walker 

 10 is here, but do you find that -- 

 11 MR. HERLING: Well, he's -- 

 12 JUDGE KRAVITZ: -- that it's more 

 13 inefficiently handled or, I mean, does it hamper you at 

 14 all? 

 15 MR. HERLING: No. I think what happens is, at 

 16 least for myself and some of my other colleagues, is 

 17 that we're so used to doing it that we try to write the 

 18 briefs with that in mind. Even though we may not call 

 19 it that, we know we have to marshal those facts 

 20 together.

 21 And I understand that someone coming in for 

 22 the first time and looking and say, oh, my goodness, 

 23 this is terrible. But really if you do it enough, you 

 24 know it's a good tool. I want to use it as part of the 

 25 overall -- you know, we've heard, you know, of a mosaic 

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 1 or the overall story. It's just one piece of the 

 2 entire information.

 3 Rule 26, I'm very much in favor of all of the 

 4 proposed revisions. I do want to talk a little bit 

 5 about the communications with what is being called

 6 non-disclosure experts or non-retained experts. And I 

 7 think there's two types. There's one where you have 

 8 employees of companies that have a certain amount of 

 9 expertise, whether it be technical or scientific or 

 10 medical expertise, in that those communications are 

 11 protected under the attorney-client privilege.

 12 However, when you move along that continuum 

 13 and then they become expert -- testifying experts, then 

 14 there's this gray area. The continuum is absolute

 15 attorney-client privilege to a testifying expert or at 

 16 least in California practice anything I say to my 

 17 expert the other side has an opportunity to find out 

 18 what it was.

 19 JUDGE KRAVITZ: Is that because of waiver 

 20 basically, that by putting this person on, you are

 21 deemed to have waived whatever privilege would 

 22 otherwise apply? 

 23 MR. HERLING: Well, not necessarily waiver. 

 24 It's just that the retained expert, we have to -- the 

 25 retained expert is an outside expert. Anything that we 

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 1 say to them -- 

 2 JUDGE KRAVITZ: Right.

 3 MR. HERLING: But I'm saying that when we get 

 4 into this argument with counsel on both sides -- and I 

 5 made the same arguments. I'm entitled to everything 

 6 you told that person. In fact, I got in that argument 

 7 Friday on an expert who was a non-retained expert 

 8 because it was a state court case. I think that as we 

 9 move along this continuum there has to be some clarity 

 10 as to the protection of attorney-client. 

 11 And I understand the three exceptions and I 

 12 think they are all good ones, but then we have this 

 13 gray area as to -- and I think the best way to explain 

 14 this is through an illustration currently I'm dealing 

 15 with.

 16 I have a case where we have an opinion letter, 

 17 an IP opinion letter that was written ten years ago. I 

 18 don't know whether the facts found in that opinion

 19 letter are true, false, slanted. I have no idea. I 

 20 have to go back and find someone inside that 

 21 corporation to look at that and say the assumptions in 

 22 that letter are accurate, the factual assumptions on 

 23 how the piece of equipment operates and, therefore, the 

 24 ultimate opinion is correct, before I can take that 

 25 letter and hand it to an outside consultant. 

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 1 Because if I just give that letter to that 

 2 outside consultant, I don't know whether that opinion 

 3 letter is factually accurate. So I need to have 

 4 someone vet that. But then I'm faced with the 

 5 conundrum that if I vet it through the same person I'm 

 6 going to use as the non-retained expert, I run the risk 

 7 of having that vetting process exposed and maybe that 

 8 those facts are inaccurate. 

 9 It may be that those facts were not exactly 

 10 100 percent put forth in the right way, and the reasons 

 11 are in this particular case because we have a Japanese 

 12 client and they were interviewing Japanese engineers 

 13 and there's translation issues and things like that.

 14 As I read these rules right now, I still have 

 15 a conundrum. I still have a problem. And so then I 

 16 end up finding myself trying to figure out a way to 

 17 give this information or maybe select somebody else to 

 18 be the right inside person to testify, and I may be 

 19 compromising myself and then my client because I can't 

 20 use that person because that person has been used as a 

 21 vetting expert because of communications. So that's an 

 22 issue I think we ought to think about. 

 23 Now, at the same time I think there's a 

 24 difference between a non-retained employee expert and a 

 25 non-partisan non-employee expert, and that would be 

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 1 your position or your investigator and things like

 2 that.

 3 So I just would ask the committee to think 

 4 about that issue because it's a real-life one we have 

 5 to deal with on a daily basis.

 6 JUDGE KRAVITZ: Thank you very much.

 7 MR. HERLING: Thank you.

 8 JUDGE KRAVITZ: Mr. Packer. Welcome. 

 9 MR. PACKER: Thank you. Good afternoon, 

 10 members of the committee. My name is Tom Packer. I've 

 11 practiced here in San Francisco for the past 28 years, 

 12 and in recent years my practice has also taken me up to 

 13 Oregon on a day-to-day basis. And I thought I'd make 

 14 just a couple of points regarding the expert issues, 

 15 Rule 26, and one specific point on the summary judgment 

 16 issue that has been talked about today. 

 17 On the issue of Rule 26 and the experts, it's 

 18 interesting. We were in Oregon. I don't know how many 

 19 of you are aware in the state courts in Oregon, expert 

 20 disclosure, much less all the information we're talking 

 21 about, is not even required prior to trial. So it's a 

 22 real treat as opposed to talking about all of the ins 

 23 and outs of expert disclosure certainly in the federal 

 24 system. 

 25 We have many of the same issues in California, 

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 1 but I was -- in reading the proposed rules for Rule 26, 

 2 they don't seem to be -- at least today, I don't know 

 3 if you've heard so much in the other hearings, but the 

 4 core of it doesn't seem to be so much in dispute in 

 5 terms of trying to streamline and make the whole expert 

 6 discovery process more efficient. 

 7 To the extent there are -- whether in the 

 8 committee or otherwise, there are still questions about 

 9 that, I just want to say that reading them from a civil 

 10 practitioner standpoint, they're a real breath of fresh 

 11 air. Because the way that many attorneys are forced to 

 12 deal with retained experts, for example, is outdated, 

 13 outmoded. 

 14 Many attorneys won't even talk with an expert 

 15 by phone or in person, in other words, verbally, and 

 16 here we are in an age of texting, e-mail, word 

 17 processing and whatnot, and yet the attorneys are being 

 18 strained because of fear of excessive and inordinate 

 19 expense of discovery into all of those communications. 

 20 So I think what you've done and at least what 

 21 you're considering here takes a whole process a long 

 22 way and allows practitioners like us to practice in the 

 23 21st century and not back in times where you get on the 

 24 phone or talk with an expert. And in the end the goal, 

 25 I think, is to have the courts and the juries receive 

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 1 better-prepared experts, better-prepared expert 

 2 reports, and I think that's what will result from these 

 3 rules that are being proposed.

 4 In terms of the employee expert, if you will, 

 5 that's been discussed today, my point of view on that 

 6 is that just because a business is sued doesn't mean -- 

 7 and I know this isn't the exact point that's being

 8 raised and is touched on by the rules -- doesn't mean 

 9 the attorney-client privilege should be waived if there 

 10 is an employee who has a special expertise. 

 11 But beyond that, affording that employee's 

 12 communications with the attorney at least the basic 

 13 work product protection that retained experts would 

 14 have goes a long way towards allowing a business to 

 15 defend itself, frankly, because sometimes the most

 16 effective -- sometimes only the most real knowledgeable 

 17 expert, the product, for example, at least in some, is 

 18 that employee expert. And the proposed rules, I think, 

 19 are, frankly, fair and necessary and not to 

 20 disadvantage a company just because it happens to have 

 21 expertise on staff. 

 22 The more -- the grayer areas, as Mr. Herling, 

 23 just mentioned, have to do with the third category of 

 24 experts, which are the treating physicians, the 

 25 treating accountant, if you will, the professionals who 

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 1 are fact witnesses but may have -- may have expert

 2 testimony to give.

 3 And providing an attorney summary so that -- 

 4 and many of them will not even want to do reports, and 

 5 you can't force them to do a report, obviously, but I 

 6 think the goal is to avoid surprise if an attorney does 

 7 know that that professional -- that that fact witness, 

 8 if you will, turns -- who turns out to be a 

 9 professional may have expert opinions, nonetheless, 

 10 that if there's some advance warning of that and, you 

 11 know, nonetheless allow the attorneys to talk with that 

 12 fact witness with some work product protection -- 

 13 excuse me, work product protection, I think that would 

 14 still advance the goals of efficient expert disclosure 

 15 and ultimately expert discovery so that attorneys can 

 16 somewhat really talk with these witnesses with the two 

 17 or three exceptions about if you give them any 

 18 information or documents or whatnot to base their 

 19 opinions.

 20 JUDGE WALKER: Mr. Packer.

 21 MR. PACKER: Yes. 

 22 JUDGE WALKER: What is it that you found so 

 23 illuminating in your experience in Oregon? Is it the 

 24 text of the rule or the custom or practice? What --

 25 MR. PACKER: I just made the point that in 

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 1 Oregon there is no disclosure of experts in the first 

 2 place.

 3 JUDGE WALKER: None whatsoever? 

 4 MR. PACKER: In the state courts. There's 

 5 just much less discovery is what we're talking about. 

 6 There is no disclosure of experts whatsoever. And I 

 7 think this made the point as an introductory remark 

 8 that certainly you are all trying to increase the 

 9 uniform procedures throughout the country. The 

 10 states -- those states are a patchwork of different 

 11 discovery mechanisms and different rights to discovery 

 12 with California having expert discovery disclosure and 

 13 discovery while Oregon does not. 

 14 It has no particular relevance in this other 

 15 than to illustrate that, to the extent we do have 

 16 expert discovery, it should be -- it's perhaps all or 

 17 nothing. Fair and open and efficient or not have it at 

 18 all, which I don't think is -- we're going there at 

 19 this point in space.

 20 JUDGE KRAVITZ: Professor Marcus?

 21 PROFESSOR MARCUS: Could I follow up a little 

 22 bit with your concern about employees of the company 

 23 when you represent the company? 

 24 At least one of the witnesses that appeared 

 25 before us in San Antonio emphasized something along the 

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 1 line that, "well, almost everybody who works at my

 2 company is an expert in his or her job." And I think 

 3 you said, well, you often need to talk to people who 

 4 were hands-on participants in what the lawsuit is 

 5 about. 

 6 Does this really have anything to do with 

 7 whether they might give testimony covered by Rule 702 

 8 or they just happen to be employees who have 

 9 information about what the lawsuit is about? 

 10 MR. PACKER: Well, those employees that you -- 

 11 just happen to have the expertise because of their

 12 background in the company and happen to have some 

 13 knowledge about what happened or some relevant facts. 

 14 And those are -- you know, essentially in many ways 

 15 they are fact witnesses in terms of -- 

 16 PROFESSOR MARCUS: Would it be your position 

 17 that if the protection you are suggesting we extend is 

 18 extended it would apply only to your communications 

 19 with them when they are talking to you wearing their 

 20 expert hats or all communications that you have with 

 21 them have anything to do with the lawsuit? 

 22 MR. PACKER: Well, in the first place, if they 

 23 are -- if they are, as you say, a fact witness, if you 

 24 will, I think the attorney-client privilege applies 

 25 from the start. In other words, they are an employee. 

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 1 I'm their attorney. They're an employee of the company 

 2 and I'm their attorney. 

 3 So to the extent, though, that we want them to 

 4 go beyond that, beyond the facts of the case and give 

 5 expert testimony, then, of course, there's still an 

 6 argument that they're still attorney-client 

 7 communication at that point. 

 8 But if they are getting information beyond 

 9 what they normally get in the course of their 

 10 employment, then the same protections, the attorney 

 11 work product protections, should apply just as with 

 12 retained experts because it's a -- there -- it's a

 13 special position that they are adopting as opposed to 

 14 just observing something. And I think that's what -- 

 15 that's what I see the gist of the spirit of the rule is 

 16 is that if they do go beyond something and I give them 

 17 some additional information, for example, or whatnot, 

 18 what we ordinarily have --

 19 PROFESSOR MARCUS: Has it been your experience 

 20 that -- I think you said, certainly many have, that the 

 21 regime since 1993 with regard to reports and intrusion 

 22 into the lawyer's interaction with retained experts, 

 23 outside retained experts, has produced some bad 

 24 consequences and made people go through gymnastic 

 25 exercises. 

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 1 Have you found that to be true when you're 

 2 talking to these company employee-type folks, also? 

 3 MR. PACKER: To the extent that, you know, an 

 4 attorney will -- on the other side will engage in the 

 5 same type of deposition, for example, of an expert that 

 6 has been mentioned before, and I saw some other 

 7 testimony of going to everything that has been 

 8 communicated, every circumstance, every meeting, 

 9 et cetera, et cetera, yes. 

 10 The same inefficiencies exist in that 

 11 situation with an employee as with a retained expert, 

 12 and that's what I see these rules trying to address in 

 13 terms of trying to streamline the discovery and offer 

 14 some work product protection so that not every single 

 15 bit of just communication is not necessarily open to 

 16 discovery, but what's important is. And -- 

 17 MR. HIRT: So are you saying that you want 

 18 parallel treatment in terms of your -- your thought 

 19 processes whether or not it's an employee or a retained 

 20 witness? 

 21 MR. PACKER: Yes. 

 22 And one last comment on the point-counterpoint 

 23 and I'll make it very short. As you know, in 

 24 California we do have the same -- we have a 

 25 point-counterpoint system. There have been 

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 1 descriptions of the mosaic being -- attorneys allowed 

 2 to present to the court the mosaic of facts and 

 3 inferences and whatnot, but one attorney's mosaic I 

 4 think we should remember is another attorney's house of 

 5 cards, if you will, and the -- 

 6 JUDGE KRAVITZ: We don't want to mix 

 7 metaphors. 

 8 MR. PACKER: No. I'm juxtaposing them.

 9 But the -- I thought at least 

 10 point-counterpoint does allow the attorney bringing the 

 11 motion for summary judgment to focus the court on the 

 12 genuine issues of material facts so that the attorney 

 13 trying to paint the mosaic, if you will, perhaps can 

 14 run around the central facts, but they can't hide from 

 15 them, and that, I think, is something of value. 

 16 Thank you.

 17 JUDGE KRAVITZ: Thank you very much, 

 18 Mr. Packer.

 19 Mr. Downs? 

 20 MR. DOWNS: Thank you, Judge Kravitz, members 

 21 of the panel. I will be brief. I'm scheduled to talk 

 22 on both 26 and 56. 

 23 I have listened to people and have nothing to 

 24 say about 26 that has not already been said. And on 56 

 25 I'm going to try and limit myself to certain points 

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 1 that were not fleshed out in my rather brief written 

 2 estimate.

 3 I represent insurance companies predominantly 

 4 in coverage disputes, class actions and things like 

 5 that. So I'm a defense lawyer.

 6 I want to talk about the "should" versus 

 7 "must" issue. I understand that it was not the intent 

 8 in the drafting process to change "should" to "shall" 

 9 and then effect a substantive change in the law. 

 10 Unfortunately, I think, as other witnesses 

 11 have testified, there is certainly a danger that the 

 12 perceptions of those who are not parties to the 

 13 discussions and those who are perhaps not sitting 

 14 members of the federal judiciary at the time the rule 

 15 came out or for strong business reasons didn't read 

 16 with great care the material being distributed to them 

 17 are going to in the future interpret it the other way. 

 18 Simply the fact that the bench is going to 

 19 hear arguments that, well, now you can do something 

 20 that you couldn't do before because, quote, "the rules 

 21 have changed" is a genuine fear. And I think we have 

 22 to go back and look what happens with the distinction 

 23 between the two.

 24 If a court is going to deny summary judgment 

 25 and it wants to deny summary judgment, there was a

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 1 discussion, well, there's good cause on the record. 

 2 Well, I'm assuming under those circumstances given the 

 3 way the rule is written that good cause is not that 

 4 there is a material fact that's in dispute because if 

 5 there was, you wouldn't need good cause to deny the 

 6 motion. The motion ought to be denied anyway.

 7 Similarly, that good cause is not going to 

 8 be the moving party is not entitled to the relief they 

 9 are seeking as a matter of law because, once again, if 

 10 they can't beat that element, they don't get summary 

 11 judgment.

 12 So I'm left sort of wondering what is that 

 13 other good cause that makes a court after it's applied 

 14 the rules saying the inferences run in favor of the 

 15 opposing party is look at the material facts and 

 16 determine that the material facts are indeed 

 17 undisputed, that the opposing party has had a full and 

 18 fair opportunity to present a record to the court, and 

 19 then nonetheless the motion is going to be denied for 

 20 some subjective reason that within the sound discretion 

 21 of the district judge makes sense to that judge. 

 22 I'm concerned that lessens respect for the 

 23 judiciary in some circumstances because when I go back 

 24 to my client and say, "Well, why did we lose?" 

 25 It's easy for me to say you lost because the 

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 1 judge does not agree with X and Y of the law. It's 

 2 easy to say you lost because the court denied a motion 

 3 of fact or they found that I had not met my burden as a 

 4 moving party. 

 5 But if I go back and say, "I met my burden as 

 6 a moving party, the court agrees. There's undisputed 

 7 facts, the court agrees. The court agrees I'm entitled 

 8 to judgment as a matter of law, but he's not going to 

 9 give it to me," that is not going to promote respect of 

 10 the judiciary.

 11 JUDGE WEDOFF: I wonder if there's another 

 12 scenario that you're not taking into consideration in 

 13 this debate between "should" and "must," and that is 

 14 the situation where the judge does not reach the 

 15 question at all, but the judge prefers to have a trial 

 16 because the judge believes that that will be a more 

 17 efficient economic use of the time in arguments to the 

 18 court than going through the entire briefing and 

 19 decision of the summary judgment motion and then 

 20 potentially having a trial.

 21 MR. DOWNS: I just won a dinner bet on that 

 22 very issue with one of my co-defense counsel on a case 

 23 where there was parallel state and federal litigation 

 24 and was told that the federal judge was not going to 

 25 decide the motion for summary judgment prior to the 

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 1 state court trial date. I then got an order out 

 2 setting the hearing for a week after the state court 

 3 trial had started. 

 4 I think that is a genuine legitimate issue, 

 5 but that is because there is not in the federal system, 

 6 nor should there be, a time limit on when the court 

 7 makes a decision. There are judges who may rule from 

 8 the bench and rule quickly on some motions. Those same 

 9 judges may have matters under submission for months, if 

 10 not years, under other circumstances. I know there are 

 11 judges at least in this district in the Northern 

 12 District of California where I began my practice who 

 13 are known -- they are good judges, but they are known 

 14 for keeping matters in the court files under submission 

 15 for anywhere from six months to a year and a half.

 16 I had a case I tried recently in the District 

 17 of Nevada where the summary judgment motion was under 

 18 consideration for approximately 14 months. I won. So 

 19 I'm not that upset about the end result. But I think 

 20 it's -- I think the concern is if you're going to have 

 21 an amorphous method of ruling on the motion and saying, 

 22 "well, yes, you've met this element, you've met this 

 23 element, you've met this element, but you still lose." 

 24 There's a danger that the decision to not rule 

 25 can come up with many perfectly valid reasons that have 

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 1 nothing to do with the merits of the case, which is 

 2 probably too squirrely an issue for you as a group to 

 3 deal with in the Federal Rules. I don't see how you 

 4 would write a rule that would actually ever address 

 5 that short of putting federal judges under the same 

 6 kind of time gun, for example, that the state court 

 7 judges are here in California where if they have 

 8 something under submission for 90 days, they don't get 

 9 paid, which is a rule that does not promote fair 

 10 adjudication in many instances.

 11 JUDGE KRAVITZ: I think Congress is thinking 

 12 about that.

 13 MR. DOWNS: As long as they don't go beyond 

 14 thinking. There's some constitutional issues in it, 

 15 too.

 16 JUDGE KRAVITZ: Right.

 17 MR. DOWNS: I want to talk a little bit more 

 18 about my practice. I started my practice here in San 

 19 Francisco. I've had a lot of federal practice in my 

 20 career, but I became a member of the Nevada bar about 

 21 six and a half years ago. I practice rather 

 22 extensively there now. And the rule in Nevada, both in 

 23 state and federal courts, is not to use the separate 

 24 statement of point-counterpoint. 

 25 And I've also practiced fairly extensively in 

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 1 districts throughout this state. Uniformity is very 

 2 important and uniformity is not only important district 

 3 to district on matters that are not purely local such 

 4 as how the papers are formatted, but on the standards 

 5 of how things are done. Because when you do practice 

 6 in multiple districts, even though you commit rules to 

 7 memory and refresh them every time, there is a great 

 8 disparity in how things are done in different districts 

 9 and you also have disparities inside the district. 

 10 One of the things that happened in this 

 11 district is there are at least two, there may be more 

 12 than two -- I didn't check every judge's standing 

 13 orders on the court's website. There are two judges in 

 14 this district who when they utilize or who require the 

 15 state procedure, when they utilize it, they require a 

 16 single undisputed statement. And the standing order of 

 17 one of those judges is the parties cannot agree a fact 

 18 is undisputed if it is disputed. 

 19 That rule, while well intentioned, does not 

 20 work well in practice because no matter how in good 

 21 faith an attorney is an advocate for the client is, 

 22 sometimes there are things that either because the

 23 client's insistence despite the rules of evidence they 

 24 cannot stipulate to or because one of the parties is 

 25 just patently unreasonable and they want to bring up 

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 1 the evidence on summary judgment just by being 

 2 unreasonable. 

 3 I think it is worth mentioning in comments 

 4 that if you're going to require separate statements 

 5 that the idea that the parties must be forced to 

 6 stipulate to that which they cannot agree or they would 

 7 not be before you in the first place is 

 8 counterproductive. 

 9 JUDGE BAYLSON: I think we agree, I mean, to 

 10 some extent that the rule does not require joint 

 11 statements or anything like that. We've heard a lot of 

 12 comments about that and we specifically abstained from 

 13 requiring anybody's joint statement. 

 14 But I appreciate the comments about 

 15 uniformity, but the proposal itself allows a judge

 16 to -- to opt out of the point-counterpoint in a 

 17 particular case, and as you've heard when you were here 

 18 this morning, there's been a lot of opposition to the 

 19 point-counterpoint and we've been hearing that.

 20 So uniformity may be difficult to achieve on 

 21 this point, but what would be your views on, first of 

 22 all, requiring the briefs to have pinpoint citations? 

 23 You don't have a problem with that? 

 24 MR. DOWNS: I have no problem. I do that in 

 25 my Nevada practice. 

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 1 JUDGE BAYLSON: What would be your view of a 

 2 rule that made the point-counterpoint an opt-in for a 

 3 judge or a district clerk that had a model opt-in 

 4 procedure or a set opt-in procedure that, I mean, I 

 5 presume could be varied but would be a national 

 6 standard for those judges who wanted to do so? 

 7 MR. DOWNS: I think it might create more chaos 

 8 than it cured simply because one of the things -- I 

 9 started practicing about a month before they changed 

 10 the law in California for point-counterpoint 25 years 

 11 ago. So every motion I've ever written in California 

 12 has been under that system and we've learned over the 

 13 last 25 years how to write them. You know, somebody 

 14 else commented good lawyers don't write long 

 15 statements. Long statements if you're a moving party 

 16 are an invitation to having your motion denied. 

 17 But I think on the uniformity issue is 

 18 concerned about brief lines, too. There's at least one 

 19 judge in the Central District of California whose 

 20 standing order is that the moving party's brief will be 

 21 no longer than 20 pages long. In the Central District 

 22 all quotations in the brief must be double spaced. 

 23 They cannot be single spaced as they are in the 

 24 Northern District of California. 

 25 That same judge has a five-page limit on the 

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 1 line briefs. I have never found out whether that 

 2 counts the caption or you count the caption page. So I 

 3 always start at the top of the page of page 1. And, by 

 4 the way, in that district, all briefs must be on 14 

 5 point Times New Roman type. 

 6 JUDGE KRAVITZ: A two and a half page.

 7 MR. DOWNS: Well, considering the games people 

 8 played many years ago with fonts, unfortunately, that 

 9 type of rule was necessary to keep lawyers and their 

 10 secretaries from playing games at 4:30 in the 

 11 afternoon, but if you're going to have a rule that

 12 requires it be spelled out, there also has to be a rule 

 13 that parties have adequate opportunity to do it. 

 14 And while I recognize that the shorter the 

 15 brief, the better the brief both for the benefit of 

 16 advocacy and the court's perspective having to read 

 17 them, that doesn't change the fact that if you are

 18 going to have to lay out the facts with pinpoint cites 

 19 you need to have room to do it. 

 20 And I think the important thing about 

 21 point-counterpoint, which is really nothing more than a 

 22 formatting issue. In the State Bar of California,

 23 whether you use a grid or you use them serially, it 

 24 doesn't really matter. This is a disciplinary tool. 

 25 It's the first thing I write when I'm writing a summary 

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 1 judgment motion because if I can't write that and get 

 2 my material elements discovered and prove they are

 3 undisputed, I'm never going to file that motion.

 4 If I get a motion against me, and I have had 

 5 plaintiffs move against me successfully, the first

 6 thing I'm going to look at and go, oh, no, there is a 

 7 fact there, then I'm in deep trouble. And if I'm in 

 8 deep trouble in all those facts, I'm going to be 

 9 picking up the telephone and try to resolve that case 

 10 before it ever comes to decision. 

 11 There's a tremendous intellectual structure 

 12 and discipline in doing it and I think there's a 

 13 benefit for the courts, and the benefit is not because 

 14 you're going to get another 30 pages of paper that you 

 15 have to plow through in a limited amount of time 

 16 because highlighted right there, if you have 

 17 intellectually honest counsel, is exactly the facts 

 18 that the party contends are in dispute. And you don't 

 19 have to wade through the tortured syntax that all of us 

 20 employ on occasion in our briefs because we're tired. 

 21 We're not as good of writers as we should be 

 22 in discussing facts to figure out that this particular 

 23 fact is really the key fact on which this motion turns, 

 24 and that then, you know, what evidence is going through 

 25 that's been highlighted instead of reading the thousand 

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 1 pages of documentation that's been submitted by some 

 2 party from the deposition excerpts, exhibits, 

 3 affidavits, you can find what you need to do and get on 

 4 with life.

 5 Judge Rosenthal?

 6 JUDGE ROSENTHAL: Have you found that your 

 7 practice where the description focuses on the insurance 

 8 coverage disputes might perhaps be particularly well 

 9 suited for the kind of point-counterpoint exchange

 10 where there really aren't very many disputed facts and 

 11 often you're looking at contract interpretation issues 

 12 or looking at state insurance codes or statutes? 

 13 MR. DOWNS: I think that it's better suited 

 14 than some. I started my career at Davenport and in 

 15 that side I primarily represented the plaintiffs and I 

 16 used summary judgment motions as an offensive tactic 

 17 because if I could get the defendant backed into a

 18 corner I can get the case resolved without going to 

 19 trial.

 20 JUDGE ROSENTHAL: Were these FELA cases? 

 21 MR. DOWNS: No. Mostly property damage 

 22 cases. 

 23 And, you know, you can do it either way. Yes, 

 24 insurance coverage cases probably tend to be more 

 25 summary judgment intensive than some types of cases, 

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 1 but I practiced employment law and I work with 

 2 employment lawyers today. That's obviously a big issue 

 3 with employment issues as well.

 4 My last -- my last point really is about the 

 5 inferences, which is simply that that's why we write 

 6 briefs. You argue the inferences in your briefs. You 

 7 say here are the facts, here are the inferences that 

 8 can reasonably be drawn from these briefs. Because of 

 9 these inferences and that law, I win. And that's no 

 10 different than what's being done right now. You don't 

 11 need to argue your inferences in your separate 

 12 statement. If you do, you are creating a monster.

 13 Thank you.

 14 JUDGE KRAVITZ: Thank you very much. 

 15 Mr. Lucey. Welcome, sir.

 16 MR. LUCEY: My colleague just told me to break 

 17 a leg.

 18 You know, sitting back here since the early 

 19 morning and now at the beginning of the afternoon I'm 

 20 reminded of a story about British Parliament at the 

 21 turn of the century. True story. There was a member 

 22 of Parliament who was renowned for long-winded speeches 

 23 and one day he began one of his long-winded speeches, 

 24 which he always read from a text, head down. He 

 25 started to read from the text. Morning became late 

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 1 morning. Late morning became lunch and onward he 

 2 pressed looking down at his text word for word with 

 3 passion and vigor.

 4 Afternoon turned into early evening. And one 

 5 by one the members of Parliament started to leave the 

 6 room. He was completely unaware of this because he was 

 7 reading from his text. And finally when the sun had 

 8 faded and the night was there he finished his text and 

 9 made his point and he looked up in triumph to find the 

 10 room empty save one man sitting in the front row. It 

 11 was Winston Churchill. 

 12 Somewhat embarrassed and a little shocked he 

 13 looked down at Winston Churchill and said, "You, sir, 

 14 are a gentleman."

 15 And Winston looked up at him and said, "I, 

 16 sir, am the next speaker."

 17 I've practiced here my whole career as an 

 18 employment lawyer so I know from that perspective. I 

 19 am the incoming president of the FDCC, the Federation 

 20 of Defense and Corporate Counsel and so I speak on

 21 their behalf as well. And I'm going to address my

 22 comments to Rule 56. To be quite frank, I have nothing 

 23 meaningful to add on Rule 26 but am prepared to talk at 

 24 length on that subject anyway.

 25 Two points on Rule 56. I'm going to, with all 

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 1 due humility, flog the dead should/must horse once

 2 more. If the intent was to make a stylistic change, I 

 3 think the change didn't accomplish the purpose. I

 4 think the word "shall" has meaning to lawyers. It has 

 5 meaning to lay people and in my practice, "shall" has a 

 6 very specific meaning. Let me give you a perfect 

 7 example. 

 8 Title 7 the Civil Rights Act of 1964. "It 

 9 shall be an unlawful employment practice, dot, dot, 

 10 dot, dot, for any employer to discriminate." It takes 

 11 out the "should." "It should be unlawful to 

 12 discriminate," and then you would compound the 

 13 ambiguity with a footnote that said the lawyers should 

 14 exercise their discretion to discriminate only in very 

 15 limited circumstances.

 16 It absolutely has meaning to us. "Shall" is 

 17 "must." "Shall" is "will." And so I've sat and 

 18 listened as we've tried to get you change the 

 19 substantive standard. And I get it. We're not here to 

 20 do that. So what difference does it make? What 

 21 difference does the word make? I would suggest if you 

 22 would change the word "shall" to "might," you would 

 23 have a furor right here in front of you instead of what 

 24 you see. 

 25 And I'm also worried about the law of 

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 1 unintended consequences. We don't yet fully know what 

 2 the consequences of changing "shall" and "should" are, 

 3 but I've had some very real-world consequences not

 4 unlike Mr. Herling. In mediation in an employment case 

 5 the other side refused to get down to where we thought 

 6 they should be, one of the arguments being that the 

 7 standard has changed because the first thing everybody 

 8 looks at in an employment case is is this a summary 

 9 judgment case or not. 

 10 And I've been told now on two occasions that 

 11 my case while it used to be a good summary judgment 

 12 case was no longer because now the judge has 

 13 discretion, even if I win on the facts and even if I 

 14 win on the law, to deny the motion. So it's having 

 15 real-world consequences. And I suspect there are other 

 16 consequences that we don't know about. 

 17 And then I'm a little troubled about the cost 

 18 benefit analysis that has been raised in this 

 19 discussion. I get it if the judge says, "It's going to 

 20 take two days to try this case beginning to end and 

 21 it's going to take eight days to file a motion and have 

 22 the hearings. So I'm just going to expend less 

 23 judicial resources and we'll do it that way." 

 24 Fine. It would be more appropriate in a bench 

 25 trial, I would say, but the note in the committee's 

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 1 report talks about a difference scenario. And in that 

 2 scenario on page 24 the judge who has found no disputed 

 3 facts but realizes that the parties are probably going 

 4 to appeal this thing and there's going to be a big cost 

 5 of appeal if the judge grants the motion, exercises his 

 6 or her discretion to deny the motion really in an 

 7 effort to spare the parties' use of their scarce 

 8 resources. 

 9 Now, if you reformat that not very far, just 

 10 one step away, the judge who knows that the parties are 

 11 discussing settlement and knows that if he or she 

 12 denies the motion for summary judgment, it's going to 

 13 settle, I think that's an inappropriate response by the 

 14 judge. I think that settle or motion analysis is more 

 15 appropriate for the retired judge over at JAMS making 

 16 the big money, not the trial judge.

 17 So I would caution about the cost benefit 

 18 analysis insofar as the court is making decisions about 

 19 how the parties should spend their money. That's -- 

 20 that's the parties' right. If they want to spend more 

 21 money on summary judgment than trial, that's their

 22 right. 

 23 JUDGE WALKER: Mr. Lucey, can I ask did you 

 24 notice any change in the way that summary judgment

 25 motions were handled, disposed of by courts before

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 1 December 1, 2007 and after December 1, 2007?

 2 MR. LUCEY: You know, I have to say I have 

 3 not. It's not come up in court. I have had no judge 

 4 tell me that they are more confused about the standard 

 5 now than they were, in all candor.

 6 JUDGE WALKER: Well, it was then that Rule 56 

 7 was changed and the language in the rule was changed 

 8 from the "judgment sought should be rendered," which 

 9 changed back on December 1, 2007, and, of course, prior 

 10 to that it was "judgment sought shall be rendered."

 11 So it seems not to have made any difference. 

 12 MR. LUCEY: Well, it has in mediation. 

 13 JUDGE WALKER: I'm sorry? 

 14 MR. LUCEY: It has in mediation. I've had 

 15 lawyers tell me that it has changed the dynamics of our 

 16 mediation. I can't say it's affected any judge.

 17 And then I have a bit of, I think, a contrary 

 18 view on the point-counterpoint. It just seems from 

 19 sitting in the back there that the general presumption 

 20 is that the defense attorneys like their 

 21 point-counterpoint and the plaintiffs attorneys don't 

 22 like it. 

 23 Well, from heavy practice in California before 

 24 the point-counterpoint, during it, it was not a defense 

 25 attorney creation. This was put on us by the court. 

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 1 We didn't like it. It was hard. It was cumbersome, 

 2 but oddly I miss it. And my particular view is that 

 3 I'm not particularly enamored with the 

 4 point-counterpoint separate statement. At the end of 

 5 the day if we can have a process that's easier for the 

 6 parties, easier for the judge, fine with me. 

 7 At the end of the day all I want to know is if 

 8 there's an issue of material fact that the judge is 

 9 saying that I'm going to get to the law because this 

 10 fact is more than what it is. And as long as we get 

 11 there, I don't really care of the form of the process. 

 12 I haven't seen the kind of abuses that we've heard

 13 today practiced. It's self-policing, I think. The 

 14 more facts you create, the more chance you have to be 

 15 denied on that basis.

 16 And I think any reasonable limit would be 

 17 fine. There was talk about case cites in the body. 

 18 That would be fine as long as the parties identify

 19 those facts which are material because I think that's 

 20 what led to the creation of the California standard in 

 21 the first place. The judge is overwhelmed by 50 pages 

 22 of fact, not knowing which ones are material and which 

 23 ones aren't. As long as the material facts are 

 24 identified both in the papers, in the opposition and in 

 25 the order, I would be fine.

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 1 Thank you very much.

 2 JUDGE KRAVITZ: Thank you, Mr. Lucey.

 3 Mr. Kastner -- excuse me. Ms. Baker? 

 4 Welcome.

 5 MS. BAKER: Good afternoon. I know you're all 

 6 getting a little weary on many parts of these. So I 

 7 will you use a brief illustration first, take it to a 

 8 couple of my points and then I'd like to talk about on 

 9 Rule 56 and on 26. 

 10 By way of background I am currently the 

 11 secretary-treasurer for DRI and some of the comments 

 12 that I may be expressing or some of the ideas that I 

 13 have have come from talking with many of our members. 

 14 As a defense lawyer I also have significant 

 15 exposure to the impact of litigation on businesses and, 

 16 not surprisingly, I'm the one whose ear is being pulled 

 17 or screamed at when a summary judgment motion is denied 

 18 and I have to explain why the costs of litigation are 

 19 going to go through the roof.

 20 So let me give you a brief illustration of a 

 21 federal court case that I had about five or six years 

 22 ago and then I will use that illustration to talk about 

 23 a couple of points.

 24 The facts are very simple in this case. A 

 25 32-year-old man who was an accountant, husband, father 

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 1 to two small children died. The parties went through 

 2 discovery and as discovery progressed it became very 

 3 clear that there was going to be an issue related to 

 4 the statute of limitations, was this action brought in 

 5 a timely manner. And after the discovery reached a 

 6 point where the defendants thought it was appropriate a 

 7 motion for summary judgment was filed. 

 8 The facts were really not disputed other than 

 9 perhaps an inference of more in fact. This summary 

 10 judgment motion was filed on about January 2nd or 

 11 January 3rd. The summary judgment motion was not heard 

 12 for a period of time. The parties moved along. They 

 13 completed their discovery. The parties were at a point 

 14 where they -- under the court's rules it was necessary 

 15 to engage in a 39.1 mediation or some other alternative 

 16 dispute resolution. 

 17 The plaintiff's attorney was in an untenable 

 18 position because he perhaps was the one that missed the 

 19 statute of limitations and he took the position that he 

 20 could not give us a settlement demand. 

 21 Well, my clients and the other defendants' 

 22 clients, not surprisingly, said, well, if we don't get 

 23 a demand, we're not going to make an offer. At that 

 24 point all the parties sought relief from the federal 

 25 court not to engage in this process because clearly it 

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 1 was not going to be meaningful. 

 2 We then moved forward to a pretrial conference 

 3 which was held by telephone and during the conference 

 4 that judge said to us, "You know, I probably should get 

 5 around to ruling on that summary judgment motion."

 6 We don't hear anything. So the parties still 

 7 continue on. Trial briefs are prepared, jury 

 8 instructions are prepared and we move forward until the 

 9 Thursday before a Monday trial. And on that Thursday 

 10 everyone was faxed two orders. One was an order 

 11 granting summary judgment in which the court used 

 12 language somewhat saying "shall be granted because

 13 there's -- there's no issue of material fact and the 

 14 law is appropriate." 

 15 And the second order issued by this court was 

 16 sanctioning every party and every lawyer $500 for 

 17 failing to comply with the 39.1 mediation rule. 

 18 Now, the good news when I called my client is 

 19 I can say we won the summary judgment. The bad news 

 20 was I had to pony up money because I was sanctioned 

 21 because of the circumstances that prevailed in the

 22 motion. 

 23 Now, I don't bring this up to belittle a judge 

 24 who took some time because I know that all of you are 

 25 very busy. I bring this up because I think it 

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 1 illustrates that both parties would have wanted the 

 2 "shall" or the "must" standard applied. Each of them 

 3 needed a court to take a difficult stand or perhaps not 

 4 a difficult stand but a steady stand, make the call and 

 5 issue the order. Either the statute of limitations had 

 6 been blown or it hadn't. 

 7 This is not a discretionary matter. Both 

 8 parties in advocating before the court advocated 

 9 strongly that the court had to do this. It was the 

 10 obligation of the court. This type of decision had to 

 11 be issued. 

 12 So when I listened today and the reason I want 

 13 to tell this story is I've heard lots of differences 

 14 between whether it should be "must" or "shall" or 

 15 whether that impacts plaintiff more or it impacts the 

 16 defendants more. I think the reality is all parties 

 17 want certainty within the application of the summary 

 18 judgment rules. The parties are looking for the court 

 19 to tell us certain things. "There is a material issue 

 20 of fact. Motion denied." "There is not a material 

 21 issue of fact. Maybe the law doesn't support your

 22 contention." It might be denied. Or it might be 

 23 granted because the moving party has done other 

 24 things. 

 25 But what I think people, both plaintiff and 

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 1 defendant, insurance companies, businesses or 

 2 individuals fear the most is when there is a sliding 

 3 scale, when no explanation is given other than "I think 

 4 this is a case the jury should hear." 

 5 Very recently I filed a motion for summary 

 6 judgment. The plaintiffs did not dispute the facts. 

 7 The plaintiffs -- we were seeking to have a non-party 

 8 determined to be a cause of an injury in a tort claim. 

 9 The plaintiffs agreed in their statement of fact that 

 10 the non-parties were a cause of injury to the 

 11 plaintiff. We did not seek any segregation or, you 

 12 know, allocation of damages. 

 13 When we argued the motion the court denied it 

 14 flat out and said, "Well, the plaintiff's attorney

 15 thinks this would be a good one for the jury to hear. 

 16 So that's what I'm going to do."

 17 Now, the challenge in having a standard that 

 18 doesn't have more stability to it or a more uniform 

 19 application is simply that both parties on either side 

 20 of the fence face a really difficult situation of 

 21 having any confidence that a standard will be applied 

 22 uniformly to facts that are similar or to what legal 

 23 analyses that are similar.

 24 Let me talk briefly about employment cases. I 

 25 do some employment work. I do some other personal

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 1 injury type of work. I've heard some comments today 

 2 indicating that a discretionary standard should perhaps 

 3 be in existence or the court should be allowed greater 

 4 latitude to deny motions for summary judgment in the 

 5 employment arena. And I'd like to take on a couple of 

 6 the reasons that that has been brought up and why I 

 7 think that's not a reasonable --

 8 JUDGE BAYLSON: Excuse me. Forgive me, but 

 9 I'm not sure that's -- I know that's what some speakers 

 10 have said, but if you read the proposal of the 

 11 committee, you know, we're not advocating discretion in 

 12 our rule. We're -- we've done a lot of research on 

 13 this and we know starting with the Supreme Court in the 

 14 Liberty Lobby case that a lot of courts, including 

 15 appellate courts, have said that judges have discretion 

 16 to deny summary judgment. And we're just dealing with 

 17 that fact. That's in the case law. 

 18 MS. BAKER: Thank you, Your Honor. I 

 19 certainly appreciate that. I'm also aware of case law 

 20 where it's commented that the discretion doesn't exist.

 21 JUDGE KRAVITZ: So does that suggest, then, 

 22 that what we really ought to do is not choose "must" 

 23 and not choose "should" and just let the case law 

 24 develop wherever it takes us? 

 25 MS. BAKER: No, I don't agree with that at 

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 1 all. I mean, I think uniformity is important. I would 

 2 go back -- I would go with "shall." "Shall" is my

 3 preference.

 4 JUDGE KRAVITZ: But what do we say to the 

 5 courts who have said there is discretion when we say, 

 6 sorry, you're wrong, there is no discretion in the rule 

 7 because that's what you want us to do at the same time 

 8 as we're saying this is a procedural rule, this is not 

 9 intended to change the substance? 

 10 MS. BAKER: And I appreciate this isn't 

 11 intended to change something. What I'm trying to speak 

 12 to you is from the appearance of litigants who come 

 13 before your court. I understand the challenge it 

 14 places in front of you if you look at two cases that 

 15 say you have discretion and you look at two or three 

 16 other cases that say, no, you don't have discretion. 

 17 I think the problem that you invite with the 

 18 rule that has "should" instead of "shall" or "must" is 

 19 that you throw open a much greater door for many more 

 20 appeals because someone exercised discretion. 

 21 JUDGE BAYLSON: If the proposal said the court 

 22 may grant summary judgment, then surely you would be 

 23 correct. We would be making it a wide open 

 24 discretionary standard, which is -- I don't think is 

 25 the law either.

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 1 And, you know, we're looking for the right 

 2 verb, but, I mean, I interrupted you a bit. I don't 

 3 think it's correct to say that we're trying to change 

 4 the standard. We're trying -- we specifically don't 

 5 want to change the standard. We're looking for the 

 6 right verb that conveys what the case law has held.

 7 MS. BAKER: And I appreciate your comments, 

 8 and my choice of words may not have been as eloquent as 

 9 yours in choosing to change a standard, but I think in 

 10 having a standard that appears to the outsider, to the 

 11 litigant as having discretion is unsettling to those 

 12 that come before the court, come before the court on a 

 13 regular basis with a same or similar set of facts or 

 14 the same or similar reason or argument, and one judge 

 15 to another may interpret "shall" or "should" in a 

 16 different manner.

 17 JUDGE COLLOTON: Well, do you think that 

 18 substituting "must" for "should" would change the law 

 19 from when the rule said "shall"? Do you think "must" 

 20 is more restrictive than "shall" or do you view them as 

 21 equivalent?

 22 MS. BAKER: I think in the scheme of things I 

 23 think "must" is a little stronger. I think "must" and 

 24 "shall" are much closer than "shall" and "should." So 

 25 I think that would be --

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 1 JUDGE COLLOTON: Well, I take it to the extent 

 2 the Supreme Court recognized some discretion in the 

 3 Kennedy case or in the Anderson case under "shall," 

 4 that that law can continue to prevail under "must" or 

 5 do you think that it would be modified by "must"?

 6 MS. BAKER: Ask me that one more time. I'm 

 7 sorry. I have a post-lunch slump here and I didn't 

 8 quite follow you.

 9 JUDGE COLLOTON: Judge Baylson points out that 

 10 there is a -- or you pointed out that there are 

 11 conflicts in the lower courts about whether there is 

 12 discretion and part of that is because I think the

 13 courts view some of the Supreme Court decisions that 

 14 are ambiguous on the point. 

 15 Do you agree with that? 

 16 MS. BAKER: I do agree with that.

 17 JUDGE COLLOTON: And so the Supreme Court 

 18 presumably at some point would have to resolve whether 

 19 the rule and the law allows for discretion to grant 

 20 summary judgment even when there's no genuine issue of 

 21 fact. 

 22 And my question is if that was an open issue 

 23 under "shall be rendered," do you think we can change 

 24 it to "the court must grant" and leave it an open 

 25 issue?

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 1 MS. BAKER: I think you can go to "must," 

 2 right. And if you mean by leave it open issue, you 

 3 mean by discretionary -- 

 4 JUDGE COLLOTON: Leave whether the discretion 

 5 exists as an open issue.

 6 MS. BAKER: I think discretion of some kind is 

 7 always going to be there. What I hate to see is a term 

 8 that allows, as has already been discussed here, 

 9 lawyers to come in and say, you know, the court has 

 10 discretion to do that, not setting a judicial standard 

 11 or a conduct that judges are going to apply across

 12 uniform facts or areas of law.

 13 JUDGE KRAVITZ: Just to follow up on Judge 

 14 Colloton's point. So you believe that if the rule said 

 15 "must" rather than "should" or "shall," the Supreme 

 16 Court could nonetheless say, oh, that rule is 

 17 completely discretionary and you don't have to grant 

 18 summary judgment even if the facts are undisputed and 

 19 the law is on your side. Or does that sort of put a 

 20 thumb on the scale more towards the court saying no, it 

 21 said "must"? That means you have to grant summary

 22 judgment. There is no discretion. 

 23 MS. BAKER: I think it's more of a thumb on 

 24 the scale. I don't think that -- I don't think 

 25 discretion will ever be completely written out of this 

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 1 rule. I don't think that there's a word that will be 

 2 selected that will ever take that out.

 3 JUDGE COLLOTON: Yeah. You might say that -- 

 4 to follow up on Judge Kravitz, you might say that 

 5 "shall" was already a thumb on the scale.

 6 MS. BAKER: I think defendants perceive that. 

 7 JUDGE COLLOTON: Or it may be saying there are 

 8 some sorts of cases where there's discretion and I'm 

 9 just trying to think through whether "must" could 

 10 retain whatever residual discretion they were 

 11 recognizing.

 12 JUDGE BAYLSON: Do you have any views of the 

 13 phrase I threw out this morning to the proposal as

 14 saying "must, comma, unless for good cause stated on 

 15 the record grant summary judgment"? 

 16 MS. BAKER: You know, when I heard that this 

 17 morning, while I certainly appreciated the word 

 18 suggestion of it, my fear is that we'd be creating a 

 19 whole bunch more reason to appeal things. What is more 

 20 good cause? We'd have to have another footnote that 

 21 defined that for the case law, then have to define

 22 that, which would require a written record for that. 

 23 How would I as a lawyer know what to tell you that

 24 would then be good enough cause for you to do that? 

 25 So my basic impression of that is that it 

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 1 could work, but it would just take a whole lot of 

 2 appellate cases and decisions for helping all of us 

 3 understand what that means. 

 4 Finally, I'll just make one further comment. 

 5 And I appreciate your inquiries on 56. I just want to 

 6 talk briefly about Rule 26. I'm obviously supportive 

 7 of the changes. One of the -- Judge Kravitz, you asked 

 8 us to offer some information about what those changes 

 9 might make in our practice or how they might make a 

 10 difference, and one of the things I just wanted to

 11 bring up, which I suspect you've heard before, is 

 12 simply the use of duplicative witnesses. 

 13 There is the retained consulting expert that 

 14 never sees the light of day in court, but a lot of

 15 money and time is spent with that individual to help 

 16 you plan your strategy, to essentially get your ducks 

 17 in a row so that you can then go to the other expert. 

 18 We think it would be greatly beneficial to all 

 19 persons for the protection to exist so that candid

 20 communications could be explained, strategy could be 

 21 advocated, and that people could move forward so a jury 

 22 would be able to hear what the experts have to say. 

 23 Along with that, I think that just from 

 24 personal experience there is an awful lot of time 

 25 wasted on reports, preliminary reports, draft reports. 

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 1 "Why don't you put the comment in?" "This paragraph 

 2 has five sentences. Before you had four sentences." 

 3 Personally I think that's a large waste of time and I 

 4 would be relieved to see that go away if we had the 

 5 changes. 

 6 Thank you, Your Honor. 

 7 JUDGE KRAVITZ: Thank you very much. 

 8 Mr. Greenbaum and Mr. Kieve. 

 9 MR. KIEVE: "Kieve." 

 10 JUDGE KRAVITZ: "Kieve." I'm sorry.

 11 MR. KIEVE: You're not the first, Your Honor.

 12 MR. GREENBAUM: Good afternoon.

 13 JUDGE KRAVITZ: You're going to lead off. 

 14 MR. GREENBAUM: I'm going to lead off. 

 15 I am going to be wearing different hats. So 

 16 with the panel's permission, I may be flipping hats 

 17 during my remarks, but I would like to start. I'm here 

 18 to testify about Rule 56 and Mr. Kieve will be giving 

 19 remarks about Rule 26. But as a preliminary matter, as 

 20 the office of the ABA Section of Litigation, I wanted 

 21 to extend my gratitude on behalf of the ABA for the 

 22 decision of this committee to undertake this wonderful 

 23 study on Rule 26 two years ago as a result of the 

 24 recommendation by our federal practice task force and 

 25 later a resolution of the ABA. 

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 1 I want to further thank you for your two years 

 2 of hard work on this subject and the excellent results 

 3 that you've achieved. We think it's a wonderful 

 4 product and it should be adopted. And Mr. Kieve will 

 5 testify in more detail as to why we believe that. 

 6 Two, as to Rule 56, I'm here to testify to the 

 7 views set forth in a letter of January 29 from a number 

 8 of individual who happen to be officers and members of 

 9 the council and the federal practice task force at the 

 10 Section of Litigation. However, there's no ABA policy 

 11 on these subjects. So we express these views in our 

 12 individual capacity and I must make that disclaimer.

 13 That said, I think I'm somewhat known to the 

 14 committee. I am a lawyer who practices in Newark, New 

 15 Jersey. My practice is class action defense, but in 

 16 business cases I can be on the plaintiff's side as much 

 17 as the defendant's side. 

 18 The members who have also signed on to this 

 19 letter cross the broad spectrum of the litigation 

 20 practice. There are four small firms represented. In 

 21 fact, there's one single practitioner that I'm aware 

 22 of. There are large firms. There are plaintiff's

 23 lawyers. There are defense lawyers. And I think our 

 24 objective is truly to express our views as to what we 

 25 think is right for the profession and for the practice 

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 1 of law and it does cover a broad cross-section.

 2 First, I'd like to start with our views on 

 3 uniformity in the national rule, the importance of a 

 4 national rule. Because we really do not have one now 

 5 summary judgment is governed by a patchwork of local 

 6 rules. I believe it is broken at present. The 

 7 variations in rules are traps for the unwary who don't 

 8 know the local practice. They foster confusion and 

 9 non-compliance. 

 10 How do you know, for example, what the 

 11 consequence is of not properly responding to a fact? 

 12 Is the district going to -- you've got to line up your 

 13 facts, you don't line up your facts? And that's why 

 14 you have so much trouble with people not complying with 

 15 the standards because they vary from district to 

 16 district.

 17 With something as important as summary 

 18 judgment we believe there should be a uniform 

 19 practice. That's important for lawyers, that's 

 20 important to clients. And a uniform rule will ensure 

 21 less confusion as to procedures and will lead to better 

 22 compliance and will lead to better motions and better 

 23 responses, and we believe it will lead to more 

 24 consistent and better results. 

 25 In our view, no change, continuing our current 

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 1 practice, or optional procedure should not be a choice 

 2 because it will just continue the patchwork of 

 3 confusion that we now have.

 4 Now, with that said, I'd like to address the 

 5 point-counterpoint. We would strongly support a rule 

 6 requiring point-counterpoint provided it made clear 

 7 that we're all talking about limited and targeted fact 

 8 statements, those that identify only the material facts 

 9 critical to sustaining and defeating the claim.

 10 Our experience with the existing practice is 

 11 mixed and varied. When I say "existing," many of our 

 12 members practice in many districts where we have 

 13 variations of the point-counterpoint. And we've seen 

 14 them to be used to overburden the other side. We have 

 15 seen situations where they've been make-work and a

 16 waste of time. 

 17 And at one of our miniconferences, one lawyer 

 18 got up and said, "Well, you know how this is really 

 19 done? You write your brief and when everything is done 

 20 you give it to the youngest associate and you say do 

 21 the facts statement and they then go ahead and put a 

 22 number next to every sentence in the fact section,

 23 which if you're a good practitioner you already have 

 24 print sized in it, and then you have your statement of 

 25 undisputed facts. And that's why the judges this 

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 1 morning said, gee, I think I'm reading the same thing 

 2 twice. And that had the ring of truth to me. And I 

 3 would say that's how they were done and that's how I've 

 4 done them. 

 5 Until I went to my mini conference and this 

 6 committee opened up my eyes. I looked at this now with 

 7 a fresh appreciation and I recently had an experience 

 8 where I had a nationwide consumer class action. I

 9 moved for summary judgment and I said let me focus on 

 10 just the key facts. I came up with ten. It was two 

 11 and a half pages. My adversary said, "You know what? 

 12 Number 10. That's the one I dispute and I have an

 13 expert that says we need a trial on it." 

 14 And I said, "No. That's really an issue of 

 15 construction, which is one for the court."

 16 The trial judge agreed, granted summary 

 17 judgment, and the Third Circuit affirmed, but the 

 18 beauty of the practice was it crystallized the issues 

 19 and it took this very complex case which would have 

 20 cost great dollars in discovery, setting up a trial and 

 21 crystallized it to really the essence of the case. And 

 22 I think, if properly used, this can be a great tool 

 23 that just advances on the focus and structure, as I 

 24 said before, about how to come up with a great result. 

 25 Now, the problem with the proposal as it now 

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 1 exists is we're still getting these comments that we're 

 2 going to get overwhelmed with the burden. 

 3 Well, that's not what the rule says. It says 

 4 only those key facts. And I know this committee has 

 5 struggled with that direction. How do you get out the 

 6 message it's not 300? And, yes, it's not a great 

 7 chance of success if you come up with the 300. But we 

 8 can't account for bad lawyering. We're still going to 

 9 get the 300. 

 10 Well, what do we do? When we're dealing with 

 11 an overlay and history where we have the current 

 12 practice, where we have these 300 statements, and no 

 13 matter what words we pick and you pick, it just doesn't 

 14 get the message across, as is evident by the 

 15 testimony. You have judges saying we're going to be 

 16 overwhelmed. You have plaintiffs lawyers and 

 17 academics saying it's going to be used as an instrument 

 18 of abuse.

 19 Our answer to that is limit it, put a 

 20 numerical limit, say, 20 facts per cause of action.

 21 JUDGE KRAVITZ: Can I test that for a second? 

 22 Because, you know, on one level it sounds very good, 

 23 but the reality is we're all getting all these motions 

 24 for summary judgment in all these cases.

 25 I don't know much -- I mean, I know some about 

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 1 your case because I've had 16 conferences. Maybe 

 2 you've had some discovery issues, but I don't know the 

 3 ins and outs of the case. And ordinarily, truth be 

 4 told, I wait until a case is fully briefed before I 

 5 start digging into the briefs and the statements 

 6 because maybe a miracle will happen and the case will 

 7 settle before that and I don't want to waste my time. 

 8 So how -- how am I to decide that you should 

 9 get five more facts? In other words, the limit is 25 

 10 and you feel you need 30 and you write me this thing in 

 11 a motion, I presume, motion for five additional facts. 

 12 And your opponent objects and says you're being abusive 

 13 and you don't need those facts really and they are not 

 14 material.

 15 I'm going to have to do all that before I look 

 16 at the brief being on the summary judgment?

 17 MR. GREENBAUM: No. I don't -- I think that's 

 18 going to work itself out. It's what happens now every 

 19 day with page limits. We have page limits. It gets 

 20 the message across. You've got 40 pages. Sometimes 

 21 you need 45. You call your adversary. 

 22 "Five pages?" 

 23 "Sure." 

 24 You call the judge and write a letter and they 

 25 say okay. It's not a big deal. But it gets the 

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 1 message across that this is limited. Just take the key 

 2 off. 

 3 JUDGE KRAVITZ: So you're basically thinking 

 4 that by and large with limited exception the lawyers 

 5 are going to agree to give each other some extra facts 

 6 as a courtesy and so the judge is never -- it's going 

 7 to be a consented-to motion and -- but there will be 

 8 some presumably that won't be consented to.

 9 MR. GREENBAUM: Well, it's like what we have 

 10 now. We have ten depositions per case. When I heard 

 11 that I thought it was terrible. A big case, how can I 

 12 limit it to ten depositions? But you know what? You 

 13 work it out. You sit down with the magistrate judge. 

 14 You figure out who do I think I'm going to need. If 

 15 you need an extra one or two, you go back. It seems to 

 16 work. 

 17 25 interrogatories. Most people come to 

 18 understand interrogatories have become a waste of time 

 19 in large measure and 25 is enough. It seems to work. 

 20 JUDGE ROSENTHAL: How much different would 

 21 this be than the proposed -- than what we heard 

 22 described earlier today is used in some of the 

 23 districts of requiring a statement of facts as part of 

 24 the brief and putting -- and having the page limit

 25 serve the same governing function that you just 

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 1 described would be presented by having a limit on the 

 2 number of facts you could assert? 

 3 The other advantage that you could argue might 

 4 exist when that kind of a rule would be the absence of 

 5 the repetition between the statement of facts and the 

 6 reappearance of the same facts in the brief itself.

 7 I operate in a district that has neither 

 8 approach. So my question to you is whether as a 

 9 functional matter there would be an improvement in what 

 10 you've described as opposed to what we've heard is used 

 11 in Indiana and a few other places.

 12 MR. GREENBAUM: Let me address that in several 

 13 ways. Number one, you could put a page limit on the 

 14 separate statement of undisputed facts, which would 

 15 serve a similar purpose. The problem there is I fear 

 16 that you will not be getting the word across that this 

 17 is something different than what's in the brief, and 

 18 what you may find is the fact statement in the brief 

 19 just moved over.

 20 What I think we need is a wakeup call that 

 21 gets the message out this is not business as usual. We 

 22 just need the key facts and I think by saying 10 facts 

 23 or 20 facts per cause of action gets that message 

 24 across.

 25 JUDGE KRAVITZ: I'm sorry. Judge Walker, you 

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 1 were going to follow up on that. And I know you -- 

 2 which hat you're wearing, but if -- if the proposal was 

 3 as it currently is without a numerical limit on point 

 4 and counterpoint, would the Section of Litigation of 

 5 the people who signed that letter support this 

 6 proposal?

 7 MR. GREENBAUM: Well, we're concerned about 

 8 the abuse and we think if the language could otherwise 

 9 be improved to get the word out that we're talking

 10 about only limited focused facts, which I think you've 

 11 been trying to do, we would support it if it got that 

 12 message out, but we don't think it's done it at all by 

 13 these comments.

 14 JUDGE KRAVITZ: Okay.

 15 JUDGE WALKER: Mr. Greenbaum, can I suggest 

 16 that there is a qualitative difference between page 

 17 limitations or even limitations on the number of 

 18 depositions in that there are qualitative factors that 

 19 you can include on a page. There's a lot of 

 20 qualitative information that's included in the 

 21 deposition.

 22 When you're talking about issues, a limitation 

 23 will hamstring what may be necessary in order to convey 

 24 the mosaic, to use a term that's been used here today, 

 25 in presenting the issues.

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 1 Let me support that with an analogy. In fact 

 2 cases there are a number of judges who will put a 

 3 limitation, a numerical limitation on the number of 

 4 claims that can be construed, 5, 10, 15, 20 and so

 5 forth. Our experience in those cases has often been 

 6 where you impose that kind of a limitation, and 

 7 notwithstanding the good efforts of the lawyers, when 

 8 you get to try the case you suddenly discover that one 

 9 of the claim terms that nobody has addressed is the 

 10 claim term on which the case turns.

 11 So limiting construction of claim terms is 

 12 really an artificial constraint that does materially 

 13 change the character of the case that's presented to 

 14 the judge at the claim construction phase and we would 

 15 not have the same problem with an artificial limitation 

 16 on the number of issues to be considered at summary 

 17 judgment.

 18 MR. GREENBAUM: I don't think so because we 

 19 are still strong advocates of the discretion of the 

 20 district judge to tailor the fact requirements for a 

 21 specific case, not the standing order, not "I don't 

 22 like this, I'm never going to do it," but we are big 

 23 believers in the discretion of the trial judges to say 

 24 in this case I have a 30 limit or a 10 limit or none at 

 25 all. Or you know what? There is another issue here 

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 1 that no one talked about. We're going to amend and 

 2 allow it in. Obviously, the trial judge always has 

 3 that discretion and we don't advocate taking that 

 4 away. 

 5 But in terms of this mosaic, and this is why 

 6 in further answer to Judge Rosenthal, I think you need 

 7 two separate documents. The brief is what we put in 

 8 that mosaic. That's my art form. That's where I'm 

 9 going to argue my facts. That's where I'm going to 

 10 mold my facts. I don't want to use that brief to have 

 11 to respond to the movant's summary judgment. I'm going 

 12 to respond to it in my way. I'm going to leave my

 13 facts to create my mosaic, but that's where I do my 

 14 argument. That's where I argue my inferences.

 15 The separate facts are the things people 

 16 should agree upon. Either they are in dispute or they 

 17 are not and these are the five or six things. They're 

 18 not going to take them and argue them in my mosaic as 

 19 I'm building it. 

 20 JUDGE BAYLSON: How would your group feel 

 21 about the subparagraph that says simply the court may 

 22 limit the number of statements or similar language to 

 23 that? 

 24 MR. GREENBAUM: My worry is that going to be 

 25 enough to get -- we need something to shake people up 

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 1 because there are too many people that practice in

 2 these districts that have these statements now. 

 3 JUDGE BAYLSON: As you recall from the 

 4 miniconferences which you attended, there were some 

 5 complaints about overly voluminous statements, but a 

 6 lot of lawyers said that doesn't happen very much. And 

 7 in most cases lawyers are reasonable and the statements 

 8 are manageable.

 9 So in a case where, you know, it's a complex 

 10 issue or something, either the judge could dispense 

 11 with one form of the program altogether or could with 

 12 input from the parties come up with a number and before 

 13 you came up and filed 300 statements the judge could 

 14 strike it and say you've got to limit it to 25.

 15 MR. GREENBAUM: Well, you know, I think a note 

 16 can go a long way if it said we don't see why more than 

 17 10 or 20 would be needed for any cause of action, maybe 

 18 less. We think judges very well should consider 

 19 limiting them and make sure there's no -- you've got to 

 20 do something to get the message -- 

 21 JUDGE BAYLSON: You think if that was put in 

 22 the note -- 

 23 MR. GREENBAUM: I think that would help create 

 24 the message. Because right now all we say is if you 

 25 put in 300, you're probably not going to win, but I 

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 1 don't think that's gone far enough.

 2 Now, let me also just comment on the idea of 

 3 the national rule as an opt-in. I think that would be 

 4 a terrible idea. It would be worse than what we have 

 5 now because at least I know in my district what at

 6 least is required there. If I have to explain to a 

 7 client that to practice on something as important as 

 8 summary judgment will depend on whose name comes up on 

 9 a wheel, that's kind of hard to explain to a client, 

 10 that if you got this judge versus this judge now all of 

 11 a sudden the whole practice is different.

 12 JUDGE KRAVITZ: But that actually is how it is 

 13 in many districts. I mean, I come from a district that 

 14 uniformly every judge we have a local rule, and it's 

 15 point-counterpoint or much like this, but there are 

 16 districts where there's no local rule and each judge 

 17 has their own standing order.

 18 MR. GREENBAUM: You know, I think the work of 

 19 this committee over the years has been to try to have a 

 20 uniform practice. And it's one thing to have 93 

 21 different rules, but I would hate to see a situation 

 22 where we have 600 or a thousand.

 23 Let me -- unless there are more questions on 

 24 that -- 

 25 JUDGE BAYLSON: Let me just ask you a question 

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 1 because you have a lot of background on this. Now

 2 it's -- you know, the field is wide open. A judge in 

 3 most districts can do whatever they want unless there's 

 4 a binding order.

 5 But if you had an opt-in with a national 

 6 model, not that the judge couldn't vary it, but at

 7 least you would have a -- a standard that a judge who 

 8 wanted to use point-counterpoint could just easily

 9 adopt without customizing it. You don't see any 

 10 advantage in that? 

 11 MR. GREENBAUM: I think it would be worse than 

 12 what we have now. Because right now at least within 

 13 the realm of the District of New Jersey I know what I'm 

 14 going to get and what I have to do. When I go across 

 15 the river to New York it's maybe a slight variation. 

 16 If I take the train 100 miles south to Philadelphia, 

 17 it's another, but at least now in my own district I 

 18 know what I'm going to get. But to have the wheel

 19 determine that on a judge-by-judge basis, this then 

 20 creates havoc and a lot more confusion than what we 

 21 have now.

 22 Let me address "should" versus "must." Like 

 23 many who testified before me today, I think "must"

 24 conveys the same meaning as "shall," and I agree with 

 25 the choice of this committee not to change the 

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 1 standard. And I think if you go to "should," you're 

 2 really doing that and the end result is going to be 

 3 people are saying, you know what? Maybe you really 

 4 don't have to do this even if you've met the standard. 

 5 Now, I came of age like some members on the 

 6 committee at a time before the trilogy and I'm aware of 

 7 a district judge who said to his clerk after his first 

 8 reversal on summary judgment, "You know what? I'm not 

 9 doing this anymore. It's not going to help the 

 10 litigants because in two years the case is going to 

 11 come back to me, the circuit is not going to really 

 12 uphold it, and I'm not going to grant any more summary 

 13 judgments. So from now on define the factual disputes 

 14 or we're going to deny the motion." 

 15 This was not a judge who's looking to save 

 16 work. He was making his judgment societally as to what 

 17 was better for the ultimate disposition of the case or 

 18 cases in general.

 19 And he didn't grant summary judgments. That 

 20 was before -- and he was a very well-respected judge. 

 21 That was before the Celotex trilogy. It's no longer a 

 22 disfavored device. And I think if we go back to 

 23 "should" and put in this notion that there's discretion 

 24 here, I think it's going to become a disfavored device 

 25 again and it's going to be an excuse for those, as the 

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 1 prior witness testified, not as competent as those

 2 before me now who are looking for an easy way out and 

 3 just saying, "You know what? It's just simple. Let's 

 4 just let it got to trial. Why do I need to get 

 5 involved in this?"

 6 And I think if we put in a comment "except as 

 7 otherwise -- for reasons stated on the record," we're 

 8 really going to be opening up a Pandora's box. I know 

 9 there are cases that seem to suggest there's some 

 10 discretion. And my sense is that, number one, appeals 

 11 of the model of summary judgment are almost 

 12 non-existent. So they are a little skewed. Number 

 13 two, some of them turn on the discretion of the trial 

 14 judge in general. And I think if there is a dispute 

 15 among circuits, the Supreme Court will ultimately have 

 16 to address that and I don't think this committee should 

 17 weigh in on the scale.

 18 And from my perspective "shall" and "must" are 

 19 really the same meaning. To me it always meant when 

 20 you shall do something. And I think Judge Rosenthal's 

 21 example two years ago was the best one when it said 

 22 that shalt not kill. I mean, that's -- everyone 

 23 understands what that means. It doesn't mean maybe you 

 24 shouldn't kill, but you can in certain circumstances. 

 25 It says you shouldn't do it.

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 1 JUDGE KRAVITZ: Self-defense.

 2 JUDGE BAYLSON: She was really talking about 

 3 the original, not referring to a lawyer. 

 4 MR. GREENBAUM: Again, I think we shouldn't be 

 5 trying to change the standard. I think "should" does, 

 6 and if it hasn't taken effect until now, and I think 

 7 the style change has snuck in as a style change. If 

 8 this committee decides to keep the initiative, you're 

 9 going to start seeing the argument, ah, they changed it 

 10 now. There's a lot more discretion. Maybe you 

 11 shouldn't. Bottom line is the judge thinks the case 

 12 should go to trial. I haven't found a judge that 

 13 hasn't been upon the fact that he's going to find a 

 14 fact issue on the issue that's really troubling him or 

 15 her.

 16 Third, I just want to make a minor point on 

 17 56(c)(4). The rule as currently drafted allows the 

 18 judge to go beyond the record to deny -- to grant the 

 19 motion if -- only if it gives notice. We think the 

 20 rule should be more balanced and it should say to grant 

 21 or deny. If you go beyond the record if you want to 

 22 give notice as far as it should be, whichever way it 

 23 should go, to grant or deny.

 24 And the last point is more of a technical one 

 25 as to how you go about saying that a fact is disputed 

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 1 because it's really an evidential point. You put it -- 

 2 there was something in the note and we recommended

 3 putting it in the rule and I don't want to have to go 

 4 into that. That's in our notes. 

 5 MR. GIRARD: Judge Kravitz? 

 6 JUDGE KRAVITZ: Yes? 

 7 MR. GIRARD: Can I ask a question? 

 8 JUDGE KRAVITZ: Yes.

 9 MR. GIRARD: I'm not sure I really understood 

 10 your response to Judge Rosenthal's question about the 

 11 notion of requiring that the statement of facts that 

 12 are in dispute be included within the brief. Because 

 13 it seems to me like that is the best way to motivate 

 14 the moving party to really think about what facts need 

 15 to be looked at by the court, and I'd like to hear you 

 16 respond.

 17 How would that be a disservice if that were 

 18 the rule? How would movants be prevented? It seems 

 19 like it would address a lot of concerns that the 

 20 committee has heard about the proliferation of abusive 

 21 statements of facts that put undue burdens on 

 22 responding parties and it seems to me like unless 

 23 there's some -- some way to discipline the movants to 

 24 really think about the facts, that that's going to

 25 continue. And using something like artificial numbers 

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 1 of acceptable facts seems like a bad way to do it. It 

 2 seems like the best way to motivate the movants is to 

 3 make them think about what they need to do in order to 

 4 win the motion.

 5 MR. GREENBAUM: Let me -- I'm glad you 

 6 addressed that because maybe it will help me understand 

 7 my confusion as to what the proposal is. I see this in 

 8 two different ways. 

 9 One is you put your numbered facts in your 

 10 fact statement and that becomes in lieu of creating the 

 11 mosaic. That, I think, is a terrible idea because I 

 12 want to write my brief the way I think is most 

 13 effective in putting my chain of facts together 

 14 chronologically in the best way that I think is going 

 15 to lead to the result on that.

 16 That's the art of the aggregate, to lay those 

 17 facts out the way I want to lay them out. If I have to 

 18 do this artificial list of facts, I don't want to do 

 19 that in my brief. I want to do that as a separate

 20 issue because it's really a separate point.

 21 On the other hand, if you're just saying don't 

 22 have fact statements and just write your fact 

 23 statement, that's kind of what we have now without the 

 24 point-counterpoint and I think we will have lost a

 25 valuable tool in being able to crystallize the key

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 1 issues in a case that will help district judges and 

 2 practitioners.

 3 Moreover, I think it's more of a problem for 

 4 the respondent. If I were required to write my fact 

 5 statement only as these -- in response to these ten or 

 6 twelve things in this artificial way and then respond 

 7 to my additional ones, I couldn't tell my story. I 

 8 couldn't create my mosaic. As a respondent to a motion 

 9 I want to tell my story and, if I don't happen to 

 10 directly contradict one of their facts and maybe I do 

 11 it in my fact statement, I'll take that risk, but I 

 12 want to focus the court on what I think is most 

 13 important. 

 14 Maybe my position is, well, maybe I agree with 

 15 those, maybe I don't, but those aren't important 

 16 because here is the real critical issue and, as a 

 17 matter of law, this is all the court should be focusing 

 18 on. So I think that's more of a burden for the 

 19 respondent than even the movant. 

 20 So I think it's melding two concepts and I 

 21 think they really -- and that's been part of our 

 22 problem now in the practice as it currently exists. 

 23 There isn't enough thinking about how these statements 

 24 are different, and that's why you get this duplicative 

 25 listing of all your facts. 

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 1 MR. GIRARD: What if there are both elements 

 2 in the brief? What if there was what you refer to as a 

 3 statement of facts, which is a narrative, which 

 4 includes some facts that are not disputed, which 

 5 includes some facts that are immaterial for background 

 6 purposes, and then following that, but, again, limiting 

 7 the brief to have this number of facts on the number of 

 8 material facts. There was actually a section that

 9 would say here are the ten material facts not in 

 10 dispute and they were numbered and there would be a 

 11 requirement for the other side to respond to them. But 

 12 it would still be within whatever the overall page

 13 limit is in the brief. You'd get both your mosaic and 

 14 your numbered set. You'd have some duplication but not 

 15 complete duplication.

 16 MR. GREENBAUM: That would work. Only then I 

 17 would say give me back my pages. I want my full 40 

 18 pages for the old brief. That's the only fear of 

 19 that. I mean, I think it would discipline and it 

 20 would -- I think it's the same equivalent as the 

 21 separate fact statement, but maybe it would help 

 22 reinforce the idea that that second section is 

 23 different from the first fact section.

 24 JUDGE KRAVITZ: Thank you.

 25 MR. GREENBAUM: Thank you.

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 1 JUDGE KRAVITZ: Welcome.

 2 MR. KIEVE: Thank you very much. It's a 

 3 pleasure to be here. 

 4 My name is Loren Kieve. I am the sole partner 

 5 in a firm called Kieve Law Offices which I started last 

 6 April. Before that I was with the Quinn Emanuel law 

 7 firm for six years. Before that I had the privilege of 

 8 being one of John Koeltl's partners in New York and 

 9 Washington at Debevoise & Plimpton. 

 10 I am, in fact, wearing an official hat today, 

 11 the Litigation Section of the American Bar Association 

 12 on behalf of the American Bar Association, and I'd like 

 13 to briefly address Rule 26 and the expert discovery.

 14 They go back really to 1999. They have the 

 15 origin in something called the ABA civil practice, the 

 16 civil discovery standards which I wrote, and they then 

 17 developed into a set of protocols that lawyers, if you 

 18 take a look at civil discovery section 21, which says 

 19 when you're dealing with actual purposes counsel should 

 20 stipulate as to how you're going to deal with them, and 

 21 that evolved into something that Judge Rosenthal may 

 22 know and I know as the assessment protocols. 

 23 Whenever Steve Sussman gets a case he 

 24 immediately sends out a list of ten or so proposals to 

 25 his opposing counsel, and he says let's start out and 

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 1 do it right. And chief among those is to essentially 

 2 have the protocol begin with expert witnesses that is 

 3 before this committee that originated with the ABA's 

 4 2006 proposal to deal with expert witnesses, which I 

 5 also am very pleased to say I had a hand in writing. 

 6 That is by way of background. I've been in 

 7 practice for some time in New York and having been

 8 reminded of this a year ago by Judge Kaplan, there is 

 9 something called New York Supreme Court Rule 1 which 

 10 says that you have to put everything you're going to 

 11 say into a brief and when you get in front of the court 

 12 the court will ask you, "Is it in the brief?" And you 

 13 say, "Yes, Your Honor," at which point he will say, 

 14 "Well, why are you talking about it?" 

 15 The point here is that we have given you 

 16 everything we've given you. I'm basically here to

 17 support the rule as proposed, to laud this committee as 

 18 Jeff did for great work and suggest that if you have 

 19 any questions of me that you have in front of you a 

 20 letter dated January 16, 2009 from Bob Rothman which I 

 21 wrote.

 22 JUDGE KRAVITZ: Well, I think the only thing 

 23 that I would like to hear, maybe Professor Marcus, too, 

 24 is whether you take a position on this idea that has 

 25 been given to us that we should somehow extend the work 

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 1 product privilege or work product protection, excuse 

 2 me, for retained experts to employee non-retained 

 3 experts.

 4 MR. KIEVE: What we've suggested is, and to 

 5 use the language that I put in here, and I'm quoting 

 6 from Professor Arthur Miller, the two most important 

 7 words in the English language at least from a legal 

 8 standpoint is "it depends." And it depends on the

 9 relationship that that particular witness has to the 

 10 controversy at hand. If you have somebody who is more 

 11 akin to a retained expert witness, then it makes no 

 12 sense to treat that person in an analogous fashion. If 

 13 somebody is more akin to simply a fact witness, then 

 14 you don't make that communication off bounds to the 

 15 other side.

 16 JUDGE KRAVITZ: And that may be hard to rate 

 17 and rule on.

 18 JUDGE ROSENTHAL: It depends.

 19 JUDGE KRAVITZ: A rule that seeks clarity.

 20 PROFESSOR MARCUS: As you address that, I have 

 21 a different question but going to what you were just 

 22 talking about.

 23 If when -- when it depends enough that the 

 24 protection should apply, would you say also that a full 

 25 report should be required instead of the limited 

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 1 attorney disclosure that is what we propose with regard 

 2 to those witnesses we're talking about? 

 3 MR. KIEVE: I think the answer to that would 

 4 be yes. 

 5 PROFESSOR MARCUS: So we would need to deal 

 6 with when the full report requirement applies and when 

 7 it doesn't apply under an "it depends" approach? 

 8 MR. KIEVE: Typically you have a treating 

 9 physician. I would not have a treating physician be 

 10 required to give a full report. If you have an 

 11 in-house engineer who is essentially serving as a 

 12 substitute for an outside retained expert, I think it 

 13 would be appropriate to call for a report.

 14 PROFESSOR MARCUS: Do you think it would be 

 15 possible for counsel to arrange that that inside 

 16 engineer be really specially retained for purposes of 

 17 the litigation thereby coming under the proposal we've 

 18 already written and put out for comment? 

 19 MR. KIEVE: That's probably -- again, this is 

 20 not part of ABA policy. 

 21 PROFESSOR MARCUS: Right.

 22 MR. KIEVE: Changing hats, that's probably a 

 23 pretty good idea by saying that if you have somebody 

 24 who is testifying on a particular discrete subject that 

 25 would ordinarily be in the scope of outside retained 

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 1 expertise, then I think you could say, yes, that person 

 2 should prepare a report because that's what you're

 3 shooting at.

 4 PROFESSOR MARCUS: And that person might be 

 5 specially retained within the meaning of the current 

 6 rule? 

 7 MR. KIEVE: Yes.

 8 PROFESSOR MARCUS: Okay. I would like to ask 

 9 you a question just to be clear on something in the 

 10 letter of January 16 that you wrote.

 11 There is discussion on pages 5 and 6 of the 

 12 three exceptions in the proposal now to the limitation 

 13 on discovery regarding communications. There are three 

 14 unlimited types of topics.

 15 And my question to you, and if it would be 

 16 easier for you to respond later than now, that would be 

 17 fine, is whether this is saying there should be some 

 18 change or saying what you've done looks about right. 

 19 MR. KIEVE: I would like to respond in 

 20 writing.

 21 PROFESSOR MARCUS: Okay. That's fine.

 22 JUDGE KRAVITZ: Just make sure you keep 

 23 February 17 seared into your head because that's the 

 24 end of our comment period.

 25 MR. KIEVE: We'll have something very 

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 1 shortly. 

 2 JUDGE KRAVITZ: Good.

 3 MR. KIEVE: And, again, I would like just to 

 4 thank the committee for all of your work.

 5 JUDGE KRAVITZ: Well, thank you, and we 

 6 particularly thank the ABA and you and Jeff in 

 7 particular for starting us down this road with your 

 8 resolution and getting us thinking along these lines. 

 9 Thank you.

 10 MR. KIEVE: It's a pleasure.

 11 JUDGE KRAVITZ: Mr. Zimmer?

 12 MR. ZIMMER: Good afternoon. I'm Fritz 

 13 Zimmer. Thank you, Your Honors and other distinguished 

 14 members of the committee, for having me.

 15 Accustomed as I am to going either last or 

 16 near that for a last name that starts with a Z, I will 

 17 be very, very brief out of sympathy for those who 

 18 remain to follow.

 19 JUDGE KRAVITZ: Just think of that last 

 20 person. 

 21 MR. ZIMMER: Like all of you having sat here 

 22 since this morning, I truly am going to confine my

 23 comments because many of them have already been 

 24 received. In fact, I'm going to speak only about 

 25 Rule 56. I'll rest upon my letter for brief comments 

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 1 on 26, and even on 56 I just want to concentrate on a 

 2 couple of things.

 3 Let me start by getting -- telling you I'm a 

 4 partner at King & Spalding here in San Francisco. I'm 

 5 a member of the IADC board of directors, also an active 

 6 member of DRI, and, of course, appearing here to speak 

 7 on my own behalf. 

 8 With respect to Rule 56 and the whole debate 

 9 about "must," "shall" and "should" that we need to step 

 10 back for just a moment -- I didn't hear very many 

 11 accounts today to this effect but maybe a couple -- and 

 12 view how the public perceives that standard. When I 

 13 advise clients representing defendant corporations for 

 14 the most part as I do about whether to bring a motion 

 15 or not, I immediately tell them how expensive that

 16 process is. And yet they often are looking for relief 

 17 earlier in the case than seeing it through all the way 

 18 to trial.

 19 If they are able to meet the difficult burden 

 20 of proof that they have to cross, if you will, to prove 

 21 that there are no genuine issues of material fact, I 

 22 certainly would urge you to have the rule read that 

 23 that certainty and consistency is something that they 

 24 are entitled to and that it should be over at that

 25 point.

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 1 Now, I'm familiar with the trilogy, of course, 

 2 like all of you, but I think there's an important 

 3 benchmark to reading the rule and seeing what it says, 

 4 and that, as a couple of commentators have expressed 

 5 previously, Mr. Dunne, for example, in effect we're 

 6 really dealing with the lowest common denominator. I 

 7 have the utmost confidence in Judge Walker from here in 

 8 my home district and Judge Wilken who spoke earlier and 

 9 how thorough and intellectual their assessment is of 

 10 summary judgment and others. 

 11 However, I practice nationally as well and I 

 12 don't see that everywhere. And I don't mean to single 

 13 out any particular jurisdiction, but we need uniformity 

 14 to the extent that it can be achieved.

 15 I'm told and have read, although I don't have 

 16 data here in front of me -- I'm sure it's been 

 17 submitted to you -- that 49 out of the 50 states in 

 18 state codes dealing with summary judgment actually use 

 19 the word "shall." I would urge you to consider that in 

 20 terms of uniformity. "Must," of course, would be 

 21 preferable from a defense standpoint, but I see the 

 22 nuance in between those terms. I think "should," 

 23 excuse me, is decidedly more voluntary and much closer 

 24 to "may."

 25 The only other point I wanted to make about 

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 1 the point-counterpoint debate is that, as many other 

 2 speakers today have indicated, I've also practiced here 

 3 in California for all my 26 years of practice. It's 

 4 not something that the defense bar asked for. We had 

 5 learned to deal with it. Frankly, I come out about the 

 6 same as I believe it was Mr. Dunne and a couple of

 7 others have said. If it's not important to the judges, 

 8 I don't really have an axe to grind about that 

 9 particular matter myself either. 

 10 I do find it instructive and that it limits 

 11 the number of issues that you then talk about in a

 12 motion and, like many others, I can speak volumes to 

 13 having a witness, hopefully not in my own cases but in 

 14 those of my colleagues and others that I've heard argue 

 15 before I then took the podium, that sometimes the 

 16 weight alone of a motion results in its denial. So I 

 17 have not seen people file extraordinarily long 

 18 statements or -- of separate and supposedly undisputed 

 19 facts with any success.

 20 I think once again that that process is 

 21 designed to streamline the issues, but once again 

 22 comments that I've heard today persuade me that if

 23 judges are not satisfied with it, well, then perhaps an 

 24 opt-in or even an opt-out procedure would be 

 25 appropriate.

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 1 JUDGE KRAVITZ: Thank you.

 2 MR. ZIMMER: Thank you.

 3 JUDGE KRAVITZ: Mr. Kennedy?

 4 Welcome.

 5 MR. KENNEDY: Thank you, Your Honor. Thank 

 6 you all for sticking around this late for us.

 7 My name is Raoul Kennedy. I practice with the 

 8 San Francisco office of Skadden Arps. I've been doing 

 9 civil litigation both in California state court and 

 10 federal courts for the last 41 years and have spent a 

 11 large portion of that time, at least in the more recent 

 12 years, battling against Elizabeth Cabraser and Sharon 

 13 Arkin, and aside from gravity and a couple of 

 14 fundamental laws of physics, there isn't much that

 15 Elizabeth and Sharon and I all agree on. 

 16 The fact that we are all feeling the same way 

 17 about point-counterpoint I hope in and of itself might 

 18 carry some significance with the committee, and I will 

 19 restrict my comments just to the point-counterpoint 

 20 issue.

 21 And I think the reason that we, along with 

 22 Fritz Zimmer, people from the defense and plaintiffs 

 23 side, are in agreement on that issue is we've had 25 

 24 years of experience. And I don't think it has any

 25 substantive effect in terms of trying to improve 

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 1 getting to the right result.

 2 I can't think of a single summary judgment 

 3 motion that I have won or lost that I thought the fact 

 4 that there is the separate statement either aided me or 

 5 hindered me. I've never heard a California state judge 

 6 say, you know, if we didn't have that statement of

 7 undisputed facts, this could have been a very different 

 8 motion or I wouldn't have been able to grant it or I'll 

 9 grant you more of it. 

 10 So I think both the plaintiffs bar and the 

 11 defense bar have found this doesn't carry substantive 

 12 benefit, but it carries an incredible amount of baggage 

 13 and expense. When the rules first came into effect, we 

 14 had a case called United Community Church that said, 

 15 "We now have," and I'm quoting directly, "a gold 

 16 standard." The judge looks at the statement, the 

 17 response to it and there is everything in a 

 18 self-contained basis -- the gold standard.

 19 Six years later in a case called Cabrera

 20 applying the gold standard and looking only to what was 

 21 in the statement of undisputed facts, the court found 

 22 itself is a quandary that a law firm was going to skate 

 23 in a legal malpractice case because the plaintiff had 

 24 discussed continued representation and told of the

 25 statute in her memorandum but hadn't said a word about 

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 1 it in the statement of facts, and, therefore, under the 

 2 gold standard the discussion in the memo didn't exist. 

 3 So like Tom Lehrer's old line about a 

 4 Christian Scientist with appendicitis when the pain and 

 5 faith are sort of colliding, an exception got created 

 6 for, well, the court has a duty to look at all the

 7 evidence in the record. That was a 2 to 1 decision. 

 8 So now we have two rules, the gold standard from one 

 9 court and the exception from another.

 10 Six years later in this same court in the 2 to 

 11 1 decision was able to band together with two other 

 12 members of his court and say, "What we need" -- I love 

 13 this phrase -- "is a rule based on a baser metal than 

 14 gold. So we are rejecting both the gold standard and 

 15 you-must-search-the-record standard for the quasi or 

 16 crypto gold standard."

 17 So in California you can now choose -- and the 

 18 Supreme Court hasn't addressed the issue -- three 

 19 different appellate opinions in terms of what does or 

 20 doesn't have to be included in the separate statement. 

 21 Now, this is California and other people can do it

 22 better, but I'm just pointing out some of the problems 

 23 that we've run into.

 24 I heard today that good lawyers around here 

 25 don't have to worry about lengthy statements of fact 

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 1 or, like somebody said, I throw the associate out if 

 2 she comes in with more than twelve. Well, I've spent 

 3 most of the last year down in federal court in 

 4 Riverside where the Central District has the same rule 

 5 trying a case you may have seen -- there was a lot of 

 6 publicity about it -- Mattel versus MGA over who 

 7 invented the Bratz doll. There was a lot of money

 8 involved, but it was really one issue. Did this guy 

 9 think up the doll's idea while he was on Mattel's 

 10 payroll or did he do it on his own? 

 11 Mattel filed a summary judgment motion with 

 12 130 undisputed facts represented by Quinn Emanuel who I 

 13 think most people here would say is something better 

 14 than stumblebum lawyers. The inventor, Carter Bryant, 

 15 filed a motion for summary judgment, 60 undisputed

 16 facts through John Keker, and MGA represented by my 

 17 office, Skadden, a motion for summary judgment with 80 

 18 undisputed facts. So something like 270 undisputed 

 19 facts from people who at least pride themselves on

 20 being pretty good lawyers.

 21 Now, you say when you hear the proposal, well, 

 22 just cut it down. Well, how do you go about telling 

 23 Quinn Emanuel or John Keker you really only have 15 or 

 24 20 or 25 facts there and I predict, if you do, the

 25 revised version is going to look very much the same 

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 1 substantively except facts 1 through 6 are now going to 

 2 be fact number 1. And you can then do a whole new

 3 round of law and motion about who's cheating on 

 4 combining more than one fact into a single number. 

 5 In addition, in California we've run into 

 6 problems with whether something is or isn't in 

 7 statement of facts or even judges think they are too 

 8 long. Some judges permit writing amendments. They say 

 9 go back and do it over again until you get it right 

 10 where other people it's one strike and you're out. 

 11 So what I'm saying is at least in terms of 

 12 uniformity in California we have something that's 

 13 pretty close to an embarrassment with three differing 

 14 Court of Appeal opinions and then a local option as to 

 15 whether judges are or are not going to permit 

 16 amendment. As I say, this is without placing rote

 17 limitations on what happened.

 18 JUDGE KOELTL: Mr. Kennedy. 

 19 MR. KENNEDY: Yes. 

 20 JUDGE KOELTL: Were all the motions for 

 21 summary judgment denied in that case? 

 22 MR. KENNEDY: Virtually all of them were taken 

 23 under submission and we went and had our 14-week trial 

 24 for phase 1. Phase 2 is scheduled and most of the

 25 summary judgments are still awaiting outcome and 

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 1 determination of the issues in other phases. 

 2 JUDGE KOELTL: State court? 

 3 MR. KENNEDY: Federal court.

 4 JUDGE KOELTL: It's not -- the implication of 

 5 what you said is that the motions should have been

 6 decided before you went to trial. How could they have 

 7 been reasonably presented to a judge to make them 

 8 reasonably subject to disposition? 

 9 You say the lawyers were all good. The 

 10 claimed undisputed facts were in the hundreds and all 

 11 of these good lawyers are saying these are really 

 12 undisputed, but I take it that they were all not 

 13 undisputed. They were contested.

 14 MR. KENNEDY: Your Honor, let me add, first, I 

 15 didn't mean to suggest this all could have been 

 16 resolved earlier. It is a phased case. It's also

 17 still ongoing. So I don't want to come out of here 

 18 that I'm somehow criticizing the judge in an ongoing 

 19 case. It was not my intent to do that. I was focusing 

 20 in on the issue of are good lawyers keeping these down 

 21 to ten or twelve issues. 

 22 What I'm suggesting is all three of the law 

 23 firms in that case had been trained in the California 

 24 system where we are still worried about the gold 

 25 standard looking over our shoulder.

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 1 Secondly, to answer your question, it seems to 

 2 me this is a tool that just ignores the realities and 

 3 limitations of lawyers. If you ask most lawyers to 

 4 stipulate that the sun rises in the east, they will 

 5 say, "Every morning?" There's a certain hesitancy that 

 6 comes in in trying to get either limitation. We're in 

 7 the California system -- I'm sorry.

 8 JUDGE KOELTL: What would you do then to make 

 9 a motion for summary judgment in a complex case like 

 10 that presented to the court in a reasonable fashion 

 11 that can be decided? 

 12 MR. KENNEDY: If I may? 

 13 JUDGE KOELTL: Sure.

 14 MR. KENNEDY: If I'm required to use this 

 15 undisputed statement of facts and I've got the gold 

 16 standard over my shoulder, I put in 80 facts, as we did 

 17 for MGA in the case I just talked about, and I'm not 

 18 going to take a chance on losing the motion. 

 19 Yes, ma'am? 

 20 JUDGE ROSENTHAL: Just to follow up on Judge 

 21 Koeltl's question, would those motions you think had 

 22 been presented in an either less cumbersome manner or 

 23 clearer manner if the local rule had not been so 

 24 structured? 

 25 MR. KENNEDY: Well, absolutely. If the case 

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 1 had been pending in the Northern District, it would 

 2 have been an entirely different story.

 3 JUDGE ROSENTHAL: Shorter motions? 

 4 MR. KENNEDY: Much shorter. And people 

 5 wouldn't have needed 130 record cites because of those 

 6 130 issues. Probably 110 of them weren't essential. 

 7 The problem is is the person wearing the robe gets to 

 8 decide what's essential, not the lawyer. 

 9 So I'll express the thought there is caution 

 10 on the part of the lawyer. Secondly, lawyers just

 11 don't a very good job of conceding, and not only do we 

 12 get the 140 or 130 questions to start with, but the 

 13 other side doesn't come back disputed, undisputed,

 14 undisputed. You'll get disputed. And I'm sure some of 

 15 you in your districts have seen it, there's eight pages 

 16 of disputed evidence, including deposition transcript 

 17 page 42 through 76, Exhibit 76 -- 

 18 JUDGE KOELTL: Just to follow up, why -- I'm 

 19 sorry. 

 20 MR. KENNEDY: I just don't want anybody to 

 21 leave thinking -- 

 22 JUDGE KRAVITZ: Judge Koeltl?

 23 JUDGE KOELTL: Why would you think that it's 

 24 necessary to include facts which you don't think are 

 25 essential in a statement of undisputed fact, but you 

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 1 would feel comfortable leaving them out in a brief

 2 which is going to be your only moving paper to explain 

 3 why you are entitled to summary judgment?

 4 MR. KENNEDY: Because in the Northern 

 5 District, if something -- taking the legal malpractice 

 6 case where something wasn't in the papers about the 

 7 tolling agreement, I feel very comfortable if it's in 

 8 the record that the court is going to let us augment or 

 9 segment, whereas these undisputed facts -- as I say, 

 10 I've taken on this gold standard and that's it and

 11 there's a lack of flexibility. 

 12 So if there's any question, lawyers become far 

 13 more cautious, at least in California in state court 

 14 than they are in the federal courts where you don't 

 15 have that requirement. 

 16 JUDGE BAYLSON: There doesn't seem to be any 

 17 question that back in your MGA case the 

 18 point-counterpoint procedure is not appropriate for 

 19 that case. It's just not going to work and it seems 

 20 like it was a waste of time from day 1 for anybody to 

 21 do it. I don't know whether anybody asked the judge to 

 22 exempt them, but certainly it sounds like most judges 

 23 would have if approached.

 24 But what -- I mean, I don't know if you handle 

 25 what I would call a garden variety employment 

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 1 termination case or a garden variety insurance coverage 

 2 case where a point-counterpoint statement for many of 

 3 us would -- those judges in some districts with local 

 4 rules find it very helpful to get to the point. 

 5 You know, what does the company say about why 

 6 the person was terminated? What does the plaintiff say 

 7 are the facts shown is pretext with support from the 

 8 record, which normally can be, you know, three, four 

 9 pages of material? And just because it doesn't work in 

 10 the MGA case why not allow it for the cases where it 

 11 does work?

 12 MR. KENNEDY: For this reason and I do a lot 

 13 of what you might say are routine kinds of cases, but 

 14 as contrasted with just having briefs and record cites 

 15 with a separate statement, one, you're always a little 

 16 bit more cautious, but most important, the responses 

 17 that come back on key issues are going to be evasive. 

 18 So then the moving party then -- or at least we think 

 19 they are evasive. 

 20 Then we file a reply. So we have a 

 21 three-column document to try to trace across and it's 

 22 almost the equivalent of a request for admissions in 

 23 interrogatories. Lawyers aren't going to belly up and 

 24 candidly say what's involved.

 25 So it seems to me for the court it would just 

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 1 be an exercise in futility that you've got an imprecise 

 2 issue with an imprecise response with an imprecise

 3 rejoinder. It's like doing discovery. That's why

 4 there's magistrate judges. Why judges want to inflict 

 5 this on themselves, I don't know. 

 6 As opposed to -- you know, I heard 

 7 constructive suggestion requiring the non-moving party 

 8 to submit a proposed form of order with their 

 9 opposition that lays out specifically what do you 

 10 contend are the disputed facts along with the 

 11 evidentiary cites where you get there. So moving party 

 12 has moved, plaintiff comes back, not just words, but a 

 13 proposed form of order, and then requiring the 

 14 defendant with its reply papers to file a response to 

 15 that proposed form of order request. 

 16 In terms of funneling and getting down to 

 17 bedrock, I submit that would be -- we haven't tried 

 18 it. I don't know if we would have three Court of 

 19 Appeals opinions in California with different 

 20 interpretations of it, but I suggest trying that before 

 21 going this route. 

 22 Your Honor, another question? 

 23 JUDGE HAGY: Chris Hagy. My concern is in 

 24 your last example you're saying that if a party's 

 25 putting in pinpoint citations and required to say where 

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 1 in the record you found this, the job would be easier 

 2 on the judges. It sounds like what you're saying what 

 3 you don't like about the gold rule in California is you 

 4 can't trust the judge to search the record and find the 

 5 fact that's going to save your case. What we're 

 6 looking for is you tell us, you pinpoint that cite and 

 7 tell us where it says that that's now in dispute and 

 8 the other side then pinpoints it and shows where it 

 9 isn't disputed.

 10 If you say, well, inventor X said Y and they 

 11 say, well, inventor X said Z, we have a genuine 

 12 dispute. It's easy.

 13 MR. KENNEDY: The option then, though, is we 

 14 want to really cordon out what the genuine dispute is, 

 15 do it via a proposed form of order. Then the party 

 16 who's resisting the motion could say this is what this 

 17 case is really about and here's the evidence I've 

 18 really got. They censor the list or shorten it down 

 19 for you.

 20 JUDGE HAGY: You file that along with the 

 21 briefs so you'd have a motion and a proposed order and 

 22 brief and no statement of fact? 

 23 MR. KENNEDY: Correct. By the time you get 

 24 through with all these fixes, why not just stay with 

 25 the existing system? We always talk about the separate 

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 1 statement. It always comes, well, it's got this 

 2 problem, it's got this problem. If we get rid of this, 

 3 we can do this. If we get rid of that, we can do 

 4 this. 

 5 In California after 25 years it just is not 

 6 doing anything to help the dispute resolution system, 

 7 and the amount of money and time that gets spent on it 

 8 is really sinful.

 9 JUDGE KRAVITZ: Chief Justice Shepard? 

 10 JUSTICE SHEPARD: My question is a lot like my 

 11 seatmate's. I pose it to you a different way.

 12 Is the -- in the regime in which there is no 

 13 separate statement of facts or in which you rise or 

 14 fall on the basis of a brief that contains allegations 

 15 about what the undisputed facts are with citations on 

 16 the record and argument on why you're entitled to 

 17 judgment on that basis, is the reason why that, in your 

 18 opinion, produces more directness and less evasion

 19 largely because there is a page limit? 

 20 That is to say, the worry that you expressed 

 21 about the dynamics of the separate statement is that 

 22 everyone is fearful about leaving anything out, worried 

 23 about what the judge might think of the undisputed

 24 facts. All of those worries occur when you write a 

 25 brief that's got a limit of X pages, but you're simply 

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 1 accustomed to having to make hard choices on those

 2 days, and so will the responding party.

 3 Is it this -- is it the imposed discipline of 

 4 being forced to describe it in 8,000 words or 25 pages 

 5 or whatever the rule is that causes people to do a

 6 better job than they are doing -- than they do when 

 7 they are left to their own devices about how many facts 

 8 to list? 

 9 MR. KENNEDY: I think that's part of it. I 

 10 think give lawyers, you know, unlimited pages and they 

 11 all want to exceed them, which is what's happening. I 

 12 don't think there's any doubt about that, but I also 

 13 think the separate statement is just going to find a 

 14 way lawyers as advocates think in asking them to reach 

 15 closure and stick to things. 

 16 We're very good at writing point-counterpoint 

 17 briefs against one another, but the statement of 

 18 undisputed facts presupposes a certain amount of 

 19 collegiality and joint participation, and so now you 

 20 don't get back. You're asking lawyers to do something 

 21 most of us are genetically incapable of doing and 

 22 giving us unlimited numbers of pages in which to do 

 23 it. I think it's the combination of those two.

 24 JUSTICE SHEPARD: But when we tell you there 

 25 are 25 pages, you present the same problem, the same 

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 1 angst, don't you? You -- "I really believe there are 

 2 83 facts that entitle me to judgment and you've forced 

 3 me to abandon 70 of those because you're only going to 

 4 let me write about a certain number of them in my brief 

 5 with a statement aside." It seems to me that the real 

 6 dynamic is do we force you to describe it in X pages or 

 7 do we simply allow an unlimited number which gets 

 8 exceeded? That's a great way of thinking about it. 

 9 MR. KENNEDY: And, Your Honor, I think the 

 10 focus here ought to be we have an existing system. How 

 11 would this alternative improve -- I mean, there's 

 12 nothing inherently sinful about undisputed statements 

 13 of fact and I'm sure in a lot of cases they added 

 14 something. And there are some judges who are more

 15 comfortable. In fact, our California state court 

 16 judges are told in judges school they should start by 

 17 reading the separate statements of fact before they 

 18 even go to the briefs.

 19 The question is is whatever quantum of 

 20 additional justice, correctness or whatever worth the 

 21 price in terms of human hours and dollars that are

 22 going to be involved. And I think that's why Elizabeth 

 23 and I being on opposite sides can both agree it's a 

 24 cost benefit analysis. It doesn't help. It's a 

 25 distraction.

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 1 JUDGE KRAVITZ: Judge Walker.

 2 JUDGE WALKER: If there's nothing inherently 

 3 sinful, Mr. Kennedy, in a point-counterpoint theme, why 

 4 wouldn't it be reasonable for a committee to conclude 

 5 that it should provide a uniform point-counterpoint 

 6 system as an option or an opt-in and include that 

 7 option in the express language and rule? 

 8 MR. KENNEDY: Two things. One has already 

 9 been discussed this morning. I guess the risk that 

 10 that would then become the automatic default.

 11 Secondly, I think California experience says 

 12 this is not a practice that should be encouraged. If 

 13 there's a judge out there that wants to handle her

 14 summary judgments on a point-counterpoint, I suppose he 

 15 or she can. Unless we can find two-thirds of the 

 16 Senate that's upset about it, they will get the right 

 17 to do it.

 18 So the option is there, but I'm suggesting 

 19 there's nothing in the history of this vehicle that 

 20 suggests that you should be encouraged or endorsed or 

 21 sponsored in any way. It brings so little in terms of 

 22 positive ability and so much in terms of distraction. 

 23 It seems to me anybody who thinks they've got a really 

 24 good summary judgment motion, either the moving or the 

 25 opposing party, finds this to be a distraction that's 

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 1 just going to cost me more money and take longer to get 

 2 to the same result.

 3 JUDGE KRAVITZ: Any questions? I'm sorry.

 4 MR. HIRT: Is there any movement afoot at the 

 5 California rules level to push back -- or the Northern 

 6 District of California to push back on their 

 7 point-counterpoint? 

 8 MR. KENNEDY: Not that I'm aware of. 

 9 As long as you brought that up, I think 

 10 everyone talks about California procedures. One ought 

 11 to keep in mind we are a state with a Democratic 

 12 legislature, and however noble any of these ideas may 

 13 have been in their origin, the reason they got voted in 

 14 was the trial lawyers through their representatives 

 15 said this is something that will limit the ability of 

 16 courts to grant summary judgments or discourage people 

 17 filing them. That's the history of California. 

 18 This particular idea seems to have boomeranged 

 19 and it turns out it's doing as much economic harm to 

 20 plaintiffs as otherwise, but the only way in the last 

 21 30 years anybody has changed the summary judgment 

 22 standards in California was with the approval of the 

 23 plaintiffs bar, and I've been at lawyers meetings 

 24 with legislators who were friends of my opponents who 

 25 I've heard giggle and say we can't abolish summary

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 1 judgment, but with the latest amendment we can 

 2 certainly make it more difficult to get.

 3 And this is sabotaging, which I find kind of 

 4 ironic that you as overworked judges would want to do 

 5 anything that might undercut or hobble the availability 

 6 of the summary judgment device. 

 7 JUDGE BAYLSON: Well, you know, some of us, 

 8 including myself, we think it makes it easier and 

 9 that's been a prime motive for our moving as far as we 

 10 have. And a lot of judges feel that. There are a

 11 significant number who disagree.

 12 JUDGE KRAVITZ: So maybe the way to think 

 13 about point-counterpoint is that it's part of a 

 14 stimulus package. 

 15 Thank you.

 16 MR. KENNEDY: Thank you very much for hearing 

 17 me out. I appreciate it.

 18 JUDGE KRAVITZ: Last, but certainly not 

 19 least. Mr. Pearlman, you've been very patient.

 20 MR. PEARLMAN: I thank you very much. I guess 

 21 this puts me in the position of Winston Churchill to 

 22 use Mr. Lucey's parable. At least I have the hairline 

 23 for it, however.

 24 My name is Peter Pearlman and I have the honor 

 25 this afternoon to represent the Association of the

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 1 Federal Bar of New Jersey. It's the primary 

 2 association of lawyers in that district who practice 

 3 before the federal courts.

 4 The lawyers who are members of that 

 5 association as well practice substantially in the state 

 6 courts as well. So we bring you a view not only from 

 7 those people who litigate in the federal court and deal 

 8 with the federal system but also who litigate in the 

 9 state court of New Jersey whose rules are patterned 

 10 after and are substantially identical to the Federal 

 11 Rules of Civil Procedure.

 12 I will tell you the position which we have 

 13 taken, our board has taken in connection with the 

 14 letter which has been presented to you and which I'm 

 15 going to talk about a bit today, was taken unanimously 

 16 by the board of the Federal Bar Association. And I 

 17 will also tell you that it is unique for the entire 

 18 board of trustees, composed as it is of plaintiffs

 19 lawyers, defendants lawyers, lawyers of large firm, 

 20 lawyers of small firms, to do anything unanimously.

 21 JUDGE KRAVITZ: So you don't have any 

 22 academics, huh? 

 23 MR. PEARLMAN: We do -- no. We -- well, 

 24 part-time academics, I suppose, or proposed academics 

 25 or academics in their own minds, but none who did it 

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 1 strictly for a living in any event.

 2 We have confronted the issues that arose as a 

 3 result of the 1993 amendments to Rule 26 in both state 

 4 and federal court. And in 2001 one of our most -- most 

 5 able trial judges, the late Charles Walsh, in a 

 6 decision in the matter of Adler versus Shelton gave a 

 7 very comprehensive and I suggest well-reasoned analysis 

 8 of some of the problems that were created and some of 

 9 the difficulties that the rule proposed. 

 10 With surprising speed our state court rules 

 11 committee approved a rule change which was also with 

 12 surprising speed approved by the Supreme Court of the 

 13 State of New Jersey which resolved the problem and

 14 eliminated inquiry into communications regarding the 

 15 collaborative process, other than with respect to facts 

 16 and data, and eliminating the necessity of providing 

 17 draft reports. 

 18 I am here to tell you that it works. It works 

 19 well. It has been very widely and very favorably 

 20 accepted by the bench and bar of the State of New 

 21 Jersey. It causes the focus to fall where it ought to 

 22 fall. It causes the focus to fall on the substance of 

 23 the expert's opinion, on its correctness, on its 

 24 scientific basis, on its reasoning, on its basis in 

 25 fact and in theory. It reduces the satellite 

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 1 collateral litigation that provides simply largely a 

 2 sideshow.

 3 That collateral litigation distracts from the 

 4 central issue, sometimes inadvertently, frequently

 5 advertent. You heard earlier today from someone -- one 

 6 of the people who testified, and I wholeheartedly 

 7 concur, that it is the people who really don't have a 

 8 very strong position on the merits of whatever it is 

 9 that the expert is testifying to, the economics or the 

 10 science, who wish to delve into why the comma was 

 11 removed, who wish to spend hours and hours examining 

 12 and cross-examining, deposing on side issues, because 

 13 that's the only thing they can talk about. They really 

 14 can't talk about the merits.

 15 That, of course, does nothing to aid in the 

 16 search for truth. It certainly does nothing to aid in 

 17 the proper disposition of the expert him or herself.

 18 It also exacerbates a lack of professionalism 

 19 to permit the sideshow to go on because the attorney 

 20 then becomes the focus of the litigation. Why did you 

 21 say this? What did you do? The impression is created, 

 22 whether intentionally or not, that the attorney has 

 23 done something wrong by suggesting a theory to the

 24 expert, by questioning whether the expert's position is 

 25 appropriate here or whether this paragraph should 

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 1 really say what this paragraph says. And even if that 

 2 is not the intent, it certainly is what comes across 

 3 and it doesn't do any good for the profession.

 4 Whatever benefit there may be in permitting 

 5 extensive cross-examination of what I suggest is 

 6 largely irrelevance is overcome by the problems.

 7 Conversely, the free exchange of ideas between 

 8 the attorney and the expert benefits the process. It 

 9 causes the process to move along. It causes the 

 10 attorney -- enables, I should say, the attorney to

 11 understand better what it is that the expert means and 

 12 to understand better the science of the economics 

 13 involved. It permits the expert to understand better 

 14 from the lawyer the process of the litigation and what 

 15 is really expected or required of the experts.

 16 I really cannot say any better than what Judge 

 17 Walsh said in Adler versus Shelton, the benefits of 

 18 doing what we have done in New Jersey. And with the 

 19 panel's permission I'd like to take about 30 seconds 

 20 just to read a couple of sentences from Adler versus

 21 Shelton.

 22 JUDGE KRAVITZ: Sure. 

 23 MR. PEARLMAN: "Litigation is expensive. 

 24 Attorneys by focusing an expert's attention on the

 25 significant issues in the case unquestionably can 

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 1 improve the expert's learning curve and lessen 

 2 litigation cost. 

 3 "It is common knowledge that attorneys 

 4 regularly work with their retained experts in preparing 

 5 expert reports. It is good practice as well. Too much 

 6 scrutiny on the collaborative process serves only to 

 7 demonize the natural communicative process between an 

 8 attorney and his or her retained experts. 

 9 "The central inquiry on cross-examination of 

 10 an expert witness is not a question of it -- is not a 

 11 question of it and to what extent the expert was 

 12 influenced by counsel. Rather, it is this: What is 

 13 the basis for the expert's opinion? Cross-examination 

 14 on the adequacy and reliability of the stated basis of 

 15 the expert's opinion can be conducted effectively 

 16 absent a line of questioning on counsel's role in 

 17 assisting the expert."

 18 I could not say it better. It works in New 

 19 Jersey. We wholeheartedly recommend the amendment to 

 20 Rule 26 as proposed.

 21 JUDGE KRAVITZ: Mr. Marcus.

 22 PROFESSOR MARCUS: Just to follow up on one 

 23 thing you said. I note that your rule applies to 

 24 communications with any expert retained or specially 

 25 employed. Some who have commented to us urge that the 

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 1 protection we propose for experts of this sort be 

 2 extended to other people not required to provide the 

 3 reports and not specially retained.

 4 I wonder if the limitation on your New Jersey 

 5 rule has caused any problems that you're aware of.

 6 MR. PEARLMAN: No. The New Jersey rule 

 7 limitation provides that any expert who's going to

 8 testify provide a report. We provide a report from an 

 9 expert who's going to testify.

 10 This -- this creates a problem sometimes with 

 11 treating physicians because treating physicians aren't 

 12 real big at preparing reports. They consider it a bit 

 13 of a nuisance, but it ultimately gets done because the 

 14 physicians who testify generally are -- are somewhat 

 15 familiar with the process, the litigation process. 

 16 Orthopedic surgeons, for instance, who, 

 17 although they hate filling out reports and although 

 18 they revile against the concept, understand that they 

 19 need to because it's simply part of what they have to 

 20 do in order to treat people that are injured in 

 21 traumatic -- traumatic accidents. So they do it. It 

 22 creates a bit of nuisance. It creates sometimes an 

 23 inconvenience. It has not created any sort of an 

 24 insurmountable problem, however, I would say.

 25 I thank you -- 

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 1 JUDGE KRAVITZ: I thank you.

 2 MR. PEARLMAN: -- very much for the attention.

 3 JUDGE KRAVITZ: Thank you very much for 

 4 traveling from New Jersey. I am reminded of that sign 

 5 along the trainway of "what Trenton makes, the world 

 6 takes" and maybe we can say the same about New Jersey's 

 7 rule on experts.

 8 MR. PEARLMAN: Well, I commend it to you. It 

 9 works for us and I'm confident it will work for the 

 10 federal bar as well.

 11 JUDGE KRAVITZ: Thank you. 

 12 That brings our hearing process to a close. 

 13 We've now finished our last hearing and our last 

 14 witness. There is still time for written comments. 

 15 The comment period ends on February 17, 2009. 

 16 We are now going to have a committee 

 17 discussion, but -- and we're repairing, I gather, to 

 18 this room next to us, but we are a sunshine committee. 

 19 So anybody who wants to listen is welcome to do so. 

 20 I want to not only again thank the Ninth 

 21 Circuit but also thank the AO staff indicated, John 

 22 Rabiej and Jeff Barr and James Ishida, most especially 

 23 for the great facilities and arranging all this, the 

 24 food and the breakfast and everything else. So I thank 

 25 you.

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 1 We're going to take a ten-minute break and 

 2 then we're going to start our discussion.

 3 (Whereupon, the proceedings concluded at 

 4 3:28 p.m.)

 5 ---oOo---

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 1 CERTIFICATE OF REPORTER

 2

 3

 4 I, PETER TORREANO, a Certified Shorthand

 5 Reporter in and for the State of California, certify

 6 that the foregoing is a full, true and correct 

 7 transcript of the Civil Rules Hearing on Evidence

 8 on Proposed Amendment to Rules 26 and 56 held on 

 9 February 2, 2009, reported to the best of my ability 

 10 and transcribed under my direction.

 11

 12

 13

 14

 15 ____________________, 2009 ________________________

Date PETER TORREANO, CSR 7623 

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