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Litigation: SDNY runs the hurry-up offense

New pretrial rules set to speed up case disposition.

A new pilot program is officially under way in the Southern District of New York and lawyers are going to have to learn a new set of rules. The program, which only applies to complex civil cases, will use the next 18 months to determine if the changes accelerate the docket.

The Pilot Program Regarding Case Management Techniques for Complex Civil Cases attempts to streamline four pretrial areas:

  1. Initial pretrial case management
  2. Discovery
  3. Motion practice
  4. Final pretrial conference management

First, here is a quick summary. Right from the start, the Program nudges the parties along. Within 45 days of service, the parties will attend an initial pretrial conference, and before that conference, notify the Court regarding:

  1. What documents they intend to seek
  2. The discovery schedule (including e-discovery)
  3. Any foreseeable discovery issues
  4. Whether they intend to mediate

But this is just a sampling of what parties must divulge. Although many judges have individual practices that require parties to address certain items in case management reports, the Program identifies 21 distinct issues parties should address prior to the initial pretrial conference. At that initial conference, the parties are required to provide the Court with an overview of the case issues and their discovery needs so the Court “can make a proportionality assessment and limit the scope of discovery as it deems appropriate.”

The Program also streamlines discovery. Providing a clear and significant benefit to defendants, after a Rule 12(b)(6) or 12(c) motion, discovery of documents and e-discovery can continue, but all discovery is stayed with respect to claims that are the subject of the motion. As for discovery disputes, the Court handles all of them with a short three-page letter, except for privilege and deposition disagreements. The Program urges judges to issue a decision within two weeks of submission.

For motion practice, the Program formalizes, in some respects, what many Southern District judges have adopted in their individual practice rules. For each motion, except motions for reconsideration, motions for a new trial and motions in limine, the Court will hold a pre-motion conference. The moving party must request the conference prior to filing the motion and seven business days prior to the conference. In a modest shift from the norm, for Rule 12(b)(6) motions to dismiss, either the Court orders the parties to discuss the dispute before the motion, giving plaintiff an opportunity to amend the complaint, or the Court holds a conference after the motion is made.

New final pretrial procedures seek to organize the parties, narrow the issues and facilitate a swift move to trial. Within 14 days after completion of fact discovery, the parties must file a Joint Preliminary Trial Report. Then, within 14 days of filing the Preliminary Report, the Court should hold a Case Management Conference to discuss the Preliminary Report and finalize the litigation schedule.

Sound like a lot? Maybe, but the Southern District already seems to have moved in this direction, with several judges adopting some or all of the key components of the Program. Going forward, whether this Program becomes the norm depends on both the parties and the judges. The Program seeks to accelerate the pace of complex civil cases bogged down by that very complexity. The Southern District wants parties to talk more and file less. Both sides must show their cards early, identify their claims and defenses, make their document requests and decide on mediation. Judges already deal with large dockets of complex cases that present unforeseeable issues. For that very reason, these rules understandably contain many “shoulds” and “mays” – advisory words that leave latitude for the judges to modify scheduling orders. When the weight of those deadlines for quick decisions on complicated issues comes to bear, will courts buy time or plow forward? It’s unclear, but in 18 months, we may have an answer.

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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