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Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
Class Action Seminar.
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Class Action Seminar.

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  • Transcript

    • 1. FORUM DECISIONS
    • 2. FORUM DECISIONS
      • Federal vs. State Forums
      • Appealability of Certification Grants/Denials
      • Approval Requirements for Pre-Certification Dismissal
      • Conduct of the Trial/Case Processing Speed
    • 3. Federal vs. State Forums
      • Judges
      • Specialty court division handling complex and/or class action cases
      • Availability and quality of law clerks
      • Case load
      • Case management style
      • Propensity to certify
      • Other issues may affect forum preference, i.e. the mechanics of class certification hearings
    • 4. Appealability of Pre-Certification Grants/Denials
      • Federal
        • Standard in 9 th Circuit for interlocutory review of a certification decision under Rule 23?
      • State
        • Standard for interlocutory review of a certification decision
    • 5. Approval Requirements for Pre-Certification Dismissal
      • Federal Rules : No court approval required
      • State Rules: Court approval may be required (CRC 1859 and 1860)
    • 6. Conduct of the Trial Case Processing Speed
      • Is adequate time permitted?
      • What are the judges practices regarding trial management?
        • Size of juries
          • Unanimity requirement
        • Federal/state difference here can be case dispositive
        • Quality of juror pool (Hodge v. Aon)
        • Verdicts patterns in each jurisdiction
    • 7. SETTLEMENT APPROVAL Preliminary Approval Final Approval
    • 8. ELECTRONIC DISCOVERY
    • 9. ELECTRONIC DISCOVERY
      • Amendments to the F.R.C.P.
      • Cost Shifting
      • Litigation Hold
    • 10. Amendments to the F.R.C.P.
      • Initial Disclosures
      • Rule 26(f) Conference
      • Scheduling Conference
      • Limitations on Duty to Produce “Inaccessible” Data
      • Preservation of “Inaccessible” Data
      • Privilege Issues
      • Interrogatories – Option to Produce Electronic Records
      • Production Formats
      • Sanctions/Safe Harbors
      • Third-Party Subpoenas
    • 11. Amendments to the F.R.C.P.
      • New amendments effective December 1, 2006
      • By order of the Supreme Court, the amendments govern:
        • all cases filed after 12/1/06, and
        • all cases pending as of that date – unless the application of the amendments to already pending cases would not be just or practicable.
    • 12. Amendments to the F.R.C.P.
      • Initial Disclosures
        • Under Rule 26(a), prior to any discovery request a party must provide other parties with:
      • “ a copy of, or a description by category and location of, all documents electronically stored information, and tangible things” in its possession that it may use to support its claims and defenses
    • 13. Amendments to the F.R.C.P.
      • Rule 26(f) Conference
        • Requires parties to develop a proposed discovery plan
        • Practical effects: early discussion and disclosure of preservation and production strategies
    • 14. Amendments to the F.R.C.P.
      • Scheduling Conferences
        • Courts to address electronic discovery in the Rule 16(b) scheduling order.
        • Under Rule 16(b), a scheduling order may include:
          • provisions for disclosure or discovery or electronically stored information
          • any agreements the parties reach for asserting claims of privilege after production
        • Timing between discovery and cert motion
        • Timing between cert motion and trial
    • 15.  
    • 16. Amendments to the F.R.C.P.
      • Limitations on Duty to Produce “Inaccessible” Data: Rule 26(b)(2)(B)
        • Focus of initial discovery on “accessible” sources, but possibility of additional discovery from “inaccessible” sources pursuant to court order.
        • Rule 26(b)(2)(B) limits a party’s duty to produce
        • What data is inaccessible?
        • Leading case: Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”)
        • What is “ Good Cause ” that might require production of inaccessible data?
    • 17. Amendments to the F.R.C.P.
      • Preservation of Inaccessible Data
        • Rule 26(b)(2)(B) does NOT alter litigation preservation requirements.
        • Although a party does not have to produce inaccessible data absent a motion to compel, “a party’s identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.”
    • 18. Amendments to the F.R.C.P.
      • Privilege Issues
        • Allows parties to “claw back” documents identified as privileged after being produced. See Rule 26(b)(5).
        • In practice, the possibility of a waiver will prevent most parties from taking advantage of any perceived assistance offered by the new rule.
    • 19. Amendments to the F.R.C.P.
      • Interrogatories – Option to Produce Electronic Records
        • Instances when it is sufficient to specify the records from which the answer may be derived or ascertained. Rule 33(d).
        • Responding party is required to allow requesting party reasonable opportunity to examine, audit, or inspect such records.
        • Responding party may be required to provide some combination of technical support, information on application software, or other assistance.
        • A party that wishes to invoke Rule 33(d) may be required to provide direct access to its electronic information systems, but only if that is necessary.
    • 20.  
    • 21. Amendments to the F.R.C.P.
      • Production Formats
        • Rule 34 applies to both documents and “dynamic databases.”
        • If necessary, a responding party must “translate” information it produces into a a “reasonably usable form.”
        • The addition of “testing and sampling” to Rule 34(a)
        • Requesting party may specify the format for production. Responding party may object and specify what format it intends to use. Requesting party may then file a Rule 37(a) motion to compel.
        • E-discovery in the form in which responding party maintains its data is allowable.
        • Information maintained in a searchable form must be produced in a manner that maintains the ability to search the information
    • 22. Amendments to the F.R.C.P.
      • Sanctions for Failure to Produce
        • Rule 37(f) creates a “safe harbor” for parties failing to produce responsive electronic documents or information.
        • Obligation to preserve electronic systems
        • Specific examples of practices that might fall within the scope of Rule 37(f):
          • programs that recycle short term disaster recovery media
          • automatic overwriting of information that has been deleted
          • programs that change metadata to reflect the latest access to electronically stored data
          • programs that automatically discard information that has not been accessed within a defined period of time
    • 23.  
    • 24. Amendments to the F.R.C.P.
      • Third Party Subpoenas
        • Rule 45 amended to apply to electronically stored information.
        • Amendments designed to keep Rule 45 in accord with amendments addressed above, including principally production formats and limits on producing information not reasonably accessible.
    • 25. Amendments to the F.R.C.P.
      • Amendments – Key Points
        • Amendments codify many existing best practices.
          • Get started early
          • Reach agreement early
          • Get the courts involved early
          • Get experts (IT and external consultants) involved early
        • Amendments provide some relief from producing “inaccessible” documents
        • Safe harbor under Rule 37(f) – neither safe, nor a harbor
        • Don’t play game, e.g., if producing party maintains the information in searchable form, produce it in searchable form.
    • 26. Electronic Discovery – Cost Shifting
    • 27. Electronic Discovery – Cost Shifting
      • Shifting Costs for Electronic Discovery – Zubulake I
        • Cost shifting is NOT an appropriate consideration in every case, but may be applied when the discovery imposes an undue burden or expense.
        • “Undue burden” turns primarily whether data is kept in accessible or inaccessible format, because this “corresponds closely to the expense of production.”
    • 28. Electronic Discovery – Cost Shifting
      • Zubulake Cost Shifting Factors
        • 1. Extent to which the request is narrowly tailored to discover relevant information;
        • 2. Availability of information from other sources;
        • 3. Cost of production, compared to amount in controversy;
        • 4. Cost of production, compared to each party’s resources;
        • 5. Relative ability of each party to control costs and its incentive to do so;
        • 6. Importance of the issues at stake in the litigation; and
        • 7. Relative benefits to the parties of obtaining the information.
    • 29. Electronic Discovery -- Litigation Hold
      • Notification Obligations
        • When litigation becomes reasonably foreseeable, counsel should take steps to ensure that discoverable documents are preserved
        • “Litigation Hold Notice”
        • Notify the key players of litigation hold
    • 30. Electronic Discovery -- Litigation Hold
      • What data sources should be covered?
        • - voice mail messages/files - voice mail backup
        • - e-mail messages/files - e-mail backup
        • data files - program files
        • backup and archival tapes - temporary files
        • system history files - web site information
        • web site log files - cache files
        • cookies - other electronically recorded information
        • Super Film of Am., Inc. v. UCB Films, Inc. , 219 F.R.D. 49 (D.Kan. 2004)
        • Data found on:
        • active storage devices (computers, PDAs, voice mail)
        • removable active storage devices (CD ROMS, floppy disks, USB devices)
        • archive storage systems (backup tapes)
        • employee-owned devices
    • 31. Electronic Discovery -- Litigation Hold
      • Communicating the Notice
        • Maximize the chance that it will be received
        • preservation notification should be conveyed by company personnel with sufficient seniority and visibility within the company to enhance the likelihood that the message will be received with the appropriate level of seriousness
        • Notification obligations continue under Zubulake V
        • Consequences of failing to meet notification obligations
    • 32. DRAFTING CLASS ACTION NOTICES AND RESPONSES
    • 33. Drafting Pre-Certification Notice
      • Parris v. Lowes, 109 Cal.App.4 th 285 (2003)
      • Belaire-West Landscape, Inc. v. The Superior Court of Los Angeles County , 149 Cal.App.4 th 544 (2007)
      • Pioneer Electronics (USA), Inc. v. The Superior Court of Los Angeles , 40 Cal.4 th 360 (2007)
      • Tien v. Superior Court (Tenet Healthcare Corp.), 139 Cal.App.4 th 528 (2006)
    • 34. Pre-Certification Communication with Class Members
      • Parris v. Lowes, 109 Cal.App.4 th 285 (2003)
        • Holdings
          • A court’s limitation of parties’ pre-certification communications with class members constitutes an unconstitutional prior restraint of speech.
          • A trial court may rule on the propriety of pre-certification communications only if the opposing party seeks an injunction, protective order, or other relief.
          • If such a motion is brought, the trial court may impose restrictions on such communications only by a showing of direct, immediate, and irreparable harm.
    • 35.
      • Belaire-West Landscape, Inc. v. The Superior Court of Los Angeles County , 149 Cal.App.4 th 544 (2007)
        • Pre-certification opt-out notice to employers’ current and former employees, requiring them to object in writing in order to prevent contact information about them from being disclosed, adequately protected plaintiffs’ privacy rights.
        • Pioneer Electronics (USA), Inc. v. The Superior Court of Los Angeles , 40 Cal.4 th 360 (2007) holds the same in the consumer context.
      Pre-Certification Communication with Class Members
    • 36. Pre-Certification Notice
      • Not a court endorsement
      This Correspondence is Being Sent to You Pursuant to an Order of the Los Angeles Superior Court. The Order of the Court Does Not Constitute an Endorsement by the Court of Any of the Statements Contained Herein. The Court has Not Rendered an Opinion as to the Merits of this Case.
    • 37. Pre-Certification Notice
      • Not a court endorsement
      • Plaintiff’s Allegations
      Plaintiff’s Allegations
    • 38. Pre-Certification Notice
      • Not a court endorsement
      • Plaintiff’s Allegations
      • Request for assistance
      Plaintiffs’ counsel would like to have your address and telephone number to help in their investigation. The Plaintiffs’ lawyers would like to contact you to obtain your input as to whether the Plaintiffs’ allegations in their lawsuit are accurate.
    • 39. Pre-Certification Notice
      • Not a court endorsement
      • Plaintiff’s Allegations
      • Request for assistance
      • Opt Out Opportunity
      THEREFORE, IF YOU DO NOT WANT YOUR ADDRESS AND TELEPHONE NUMBER TO BE PROVIDED TO THE PLAINTIFFS’ ATTORNEYS, YOU MUST complete and return THE ENCLOSED POST CARD to the address listed on the postcard.
    • 40. Pre-Certification Notice
      • Not a court endorsement
      • Plaintiff’s Allegations
      • Request for assistance
      • Opt Out Opportunity
      • Identity of Plaintiffs’ attorneys
      You may contact any of the following Plaintiffs’ attorneys: . . .
    • 41. Pre-Certification Notice
      • Not a court endorsement
      • Plaintiff’s Allegations
      • Request for assistance
      • Opt Out Opportunity
      • Identity of Plaintiffs’ attorneys
      • No obligation
      You a re under no obligation to provide information to or discuss this matter with the Plaintiffs’ attorneys or any person representing the former employees. You are also under no obligation to provide information to or discuss this matter with Belaire-West or any of its agents or attorneys.
    • 42. Pre-Cert Communication
      • Tien v. Superior Court (Tenet Healthcare Corp.), 139 Cal.App.4 th 528 (2006)
        • Disclosure of names of those putative class members who contacted plaintiffs’ counsel does not violate the attorney work product doctrine.
        • Disclosure of names of those putative class members who contacted plaintiffs’ counsel does not violate the attorney client privilege.
    • 43. Pre-Cert Communication
      • Tien v. Superior Court (Tenet Healthcare Corp.), 139 Cal.App.4 th 528 (2006)
        • Disclosure would violate the plaintiff’s constitutional privacy rights.
          • Privacy rights of class members outweigh any interest an employer had in learning their identity, in so much as employer already knew the identity of all class members and it knew how it compensated its employee, while the privacy rights of class members was significant. specifically, the plaintiff’s privacy right in consulting an attorney in an atmosphere of “trust and serenity.”
    • 44. Post-Certification Notice
      • Governed by Rule 3.766 of California Rules of Court
    • 45. Post-Certification Notice
      • Brief statement of case with contentions and denials of the parties
      WHAT IS THE LITIGATION ABOUT? . . .
    • 46. Post-Certification Notice
      • Brief statement of case with contentions and denials of the parties
      • The court will exclude class member if member so requests by a specific date
      If you wish, the Court will exclude you from the class if you so request by _______. If you wish to be excluded from the class, you must send correspondence to the following class counsel: . . .
    • 47. Post-Certification Notice
      • Brief statement of case with contentions and denials of the parties
      • The court will exclude class member if member so requests by a specific date
      • Opt out procedure
      Your request must be in writing. You must state that you wish to be excluded from the class, and you must provide your name, address and social security number. Your request to be excluded must be postmarked no later than _______.
    • 48. Post-Certification Notice
      • Brief statement of case with contentions and denials of the parties
      • The court will exclude class member if member so requests by a specific date
      • Opt out procedure
      • Statement that judgment will bind members who do not request exclusion
      • Statement that any member who does not request exclusion, if the member so desires, enter an appearance through counsel
      If you do not choose to exclude yourself from the class, any judgment rendered, whether favorable or not, will be binding upon you. If you do not choose to exclude yourself from the class, you may, if you so desire, enter an appearance through counsel of your choice.
    • 49. Costs of Pre-Cert Notice
      • Typically, the party seeking class certification must initially bear the expense of preparing and distributing class notice. See Eisen v. Carlyisle & Jackquelin , 417 U.S. 156 (1974); see also Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 355 N.22 (1978) (noting, however, that courts may order defendants to assist in identifying and giving notice to the class)
    • 50. Costs of Class Notices

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