Follow-On Class Action to an Individual Suit = Double Jeopardy?

[Paul84]

Thanks, Guilty. That's very helpful. Should I oppose the Order to Show Cause (OSC) as soon as possible or do so only if and when the judge requires an in-person appearance? In any event, I'll first ask the defendants' counsel whether he will stipulate that I don't need to appear in person except for the final pretrial conference.

The judge has been on the bench for only a short time, so I doubt he has dealt with a similar overseas pro-se plaintiff before. The judge is also very smart and was considerate and polite during the phone hearing, so I don't know why he is making this kind of statement. I've spent 2 1/2 years on this case--why would he need a further test of my "commitment"? You're right, though, that maybe I pissed him off several months ago with an FRCP 11 motion for sanctions (which is what he endorsed with the OSC). He denied the motion, which I had made via a pre-motion-conference letter to preclude several issues from trial based on defendants' material, provable misrepresentations to the court.

I did try to research orders to show good cause but didn't find much: in 2d appellate opinions, "'good cause’ means, essentially, necessity" and "the definition of good cause cannot be precise". With regard to FRCP 16(e) on the Final Pretrial Conference, the rules say that the conference must be held as close to the start of trial as is reasonable. In the 2d circuit is "reasonable" weeks (which is doable for me) or months (not so doable)? The notes to FRCP 16 say, "An optimum time of 10 days to two weeks (from final conference to trial start) has been suggested by one federal judge" and that, for simple cases (like mine as it now stands), "the final conference may be the only pretrial conference".

I estimate the total cost of a trip to appear for me could reach ten times what I've spent on the entire case. I will be having a biannual physical in a couple of weeks and will ask for a doctor's letter. As part of the initial disclosures, on damages, I already provided medical records to defendants on problems related to my legs but didn't include this in the complaint (or filings with the court) because I thought incorrectly that the medical issues would be transitory.

At the risk of reading too much into this, it appears the judge is testing your commitment to this case. (Or, it's entirely possible this is just how your judge operates in these scenarios. That's the danger of assumptions). Did you do something (recently) to piss them off?

Regardless, you have to oppose the OSC. Can you get a doctor's note or something similar confirming the medical issues? Judges love documentation.

Frankly, outside of hiring a local lawyer to do the appearances, your most viable strategy is probably the "throw everything at the wall and see what sticks" approach. Take the information/reasons you've posted here, flesh them out, stir in the doctor's note, and hope for the best. (I would also suspect there has to be some Federal case law on this issue somewhere - no way this is the first time someone has litigated this issue throughout the entire US. May as well throw that in as well). Reiterate the costs, monetary and physical, and that you are willing to appear in person for a pre-trial conference as well as any trial.

I guess you can try to make some sort of ADA/access claim too, but since it would probably go over like a lead balloon, you may way to save that for a last resort (or a motion to reconsider, I suppose).

Beyond that, there's not a lot more you can do. (Well, maybe staple a $20 to the Aff in Opp, but it's definitely not recommended).

 

[You Are Guilty]

Again, those are all good arguments to make to the judge. Anything that helps show you have some 'issues' but are being as reasonable as possible under the circumstances. Asking for a ~2 week period between the PTC and jury selection is not an unreasonable request in general, and even less so for someone under your particular circumstances. If you can get defendant to stip (in writing) to any of your requests, even if less than all, that makes for good supporting documentation to the judge as well. (Very difficult for a judge to argue "prejudice" when the supposedly prejudice party disagrees in writing).

As for timing, even if no deadline was set, I'd still aim for opposing as soon as possible, but that's because I despise loose ends. If you prefer to wait until the issue actually becomes germane, you might want to CYA a bit and get written confirmation from the judge what your briefing schedule deadlines are. (As you know, "if it ain't in writing...") Plus that way, you can also send a letter application asking for more time anyway.

 

[Paul84]

Thanks again. That's sound advice--I'll file my letter motion asap.

Again, those are all good arguments to make to the judge. Anything that helps show you have some 'issues' but are being as reasonable as possible under the circumstances. Asking for a ~2 week period between the PTC and jury selection is not an unreasonable request in general, and even less so for someone under your particular circumstances. If you can get defendant to stip (in writing) to any of your requests, even if less than all, that makes for good supporting documentation to the judge as well. (Very difficult for a judge to argue "prejudice" when the supposedly prejudice party disagrees in writing).

As for timing, even if no deadline was set, I'd still aim for opposing as soon as possible, but that's because I despise loose ends. If you prefer to wait until the issue actually becomes germane, you might want to CYA a bit and get written confirmation from the judge what your briefing schedule deadlines are. (As you know, "if it ain't in writing...") Plus that way, you can also send a letter application asking for more time anyway.

 

[Paul84]

Can a judge require parties to undergo mediation?

I filed a letter motion asking for exemption from mediation in favor of direct negotiation between parties. The defendants objected but gave no reasons as to how not having a mediator would prejudice their defence. They had the option 2 1/2 years ago to use a mediator but did not do so.

The judge ruled that he will not entirely exempt the case from alternative dispute resolution. but believes "that the presence of a neutral third party may be helpful at some stage". I thought to myself, "Yes, Your Honor, a neutral third party called a jury."

Even if the judge and mediator allowed me to deal directly with a mediator by phone and email from overseas, I just see it as more work and time that I could more productively spend preparing for trial. Or would convincing a mediator of my case be good practice as a kind of "trial run"? If I decide that the defence is not likely to make any settlement offer in good faith, with or without a mediator, can I refuse mediation and if I do, can the judge simply order me to participate? If so, on what grounds? Any thoughts appreciated.

 

[You Are Guilty]

I suspect you've seen this already, but http://www.nysd.uscourts.gov/mediation.

The judge can absolutely force any party to mediation, even over objection. They are also supposed to appear in person at mediations unless:

Under some circumstances, if a party resides more than 100 miles from the Courthouse, and it would be a great hardship for the party to attend in person, he or she may
request that the mediator allow for telephonic participation at the mediation; however, if such request is granted, that party must participate by telephone for the duration of the mediation

You'd likely need the judge's order to get the in-person requirement waived (NB: I'm assuming. I've always gone in person and never needed to try to get out of going so I do not know for certain how that process works).

Now, if after all that, the judge still orders you to appear, keep in mind a few things (not that I'd recommend doing them, but...)

(1) No one said you have to accept the first mediator proposed. There are multiple grounds to object to mediator appointments (see 28USC§455 and 28USC§144), and I've seen people take full advantage of them;
(2) No one said that you have to do anything but "act in good faith" at the mediation. If you are forced to participate (in any fashion), you are welcome to sit there and do the bare minimum to be cooperative; and
(3)

In certain cases the Court will appoint pro bono (free) counsel for pro se (unrepresented) parties only for mediation. Any requests for appointment of counsel should be made to the presiding judge.

Disclaimer: Be sure to keep in mind the effects exercising one (or more) of these options may have on the Judge's attitude of your case.

 

[Paul84]

Prior Cases as Source for Jury Instructions and Verdict Form?

Unlike some other circuits, the Second Circuit does not provide model jury instructions (or verdict forms) for my particular claims. Assuming I get past a likely motion for summary judgment in the next few months, I will need to jointly prepare these with Defendants' attorney.

Should I just rely on other circuits' model instructions and assume they're applicable here in the 2nd circuit? Or should I try to find recent cases of posted jury instructions and verdict forms on Pacer for this circuit? Would these even be available on Pacer? I haven't done any successful searching on Pacer so am dubious about how effective keyword searches are there.

 

[You Are Guilty]

PACER is more geared towards "case management" rather than "document management", so I agree that a doc search there may not be particularly helpful, but I've never tried it so who knows.

If you can get you hands on this: http://legalsolutions.thomsonreuters.com/law-products/Jury-Instructions/New-York-Pattern-Jury-InstructionsCivil-2015-ed/p/100432495 (local law library maybe?), that will probably solve most of your issues as 2d Cir takes a lot from state court (but not always - you still have to do some research to confirm!). A lot of the PJI can be found for free online, but you would probably need to know the specific section you are looking for in order to get a fruitful google search.

Beyond that, you're stuck with case law and hoping you can find a similar proposed submission on PACER.

 

[Paul84]

Thanks, Guilty. For now, since federal law governs the surviving claims, I'll base my instructions on other federal circuits' model instructions and see what the defendants' attorney eventually puts forward.

PACER is more geared towards "case management" rather than "document management", so I agree that a doc search there may not be particularly helpful, but I've never tried it so who knows.

If you can get you hands on this: http://legalsolutions.thomsonreuters.com/law-products/Jury-Instructions/New-York-Pattern-Jury-InstructionsCivil-2015-ed/p/100432495 (local law library maybe?), that will probably solve most of your issues as 2d Cir takes a lot from state court (but not always - you still have to do some research to confirm!). A lot of the PJI can be found for free online, but you would probably need to know the specific section you are looking for in order to get a fruitful google search.

Beyond that, you're stuck with case law and hoping you can find a similar proposed submission on PACER.

 

[Paul84]

Interrogatories Versus Deposing Employees of Defendants on Written Questions

A few weeks ago, I submitted interrogatories to Defendants (a global corporation and its global subsidiary) and do not intend to conduct any oral depositions, due to the expense. However, what about depositions on written questions? So as not to hire an independent officer for such written depositions, can parties stipulate that, for example, an officer of the corporation such as an internal corporate counsel act as officer for the deposition--i.e. at no cost? And, if parties stipulate, instead of a transcript for submission as evidence to the Court, could the manner of recording responses to written questions be by digital tape recording, with parts of the digital tape recording played directly at trial?

Ideally I'd like to depose four persons in such a manner (via writing) but two of them work at the Defendants' subsidiaries in other countries. Would that require letters rogatory if the deponents are not third-party witnesses but are managing officers (i.e. employees) of Defendants?

Also, am I correct that depositions on written questions are less prone to attorney coaching than interrogatories and tend to be more focused?

 

[Paul84]

Requests for Admissions (of facts) versus Stipulations to Facts

I've submitted a first set of many requests for admissions, mostly based on, and referring to, disclosed documents (so that Defendants can easily find the quotes and know that I can prove them). Before responding, Defendants have contended in a telephonic meet-and-confer session that the requests are oppressive in number and often irrelevant. Basically, I disagree about the relevance or oppression and want them to stipulate to facts for streamlining the issues, so that their lawyers don't constantly interrupt me at trial with "facts not in evidence", "no foundation laid", etc. and let me just present.

Is there any difference between factual requests for admissions and a request to stipulate to facts? Shouldn't trial lawyers want to clear out non-disputed facts via stipulations or admissions?

 

[Paul84]

Do needs of a legal proceeding trump confidentiality clause for a 3rd party?

I asked a friend and ex-colleague of mine for a simple declaration (or affidavit) describing his situation at Defendants. However, as condition for his receiving severance payment from employment, he signed a confidentiality agreement with them. If necessary, I would ask the court to keep his statement under seal, for privacy concerns.

Do the needs of a U.S. legal proceeding trump confidentiality, or could my friend be at risk for breaching that clause? He would not be disclosing any trade secrets or information of commercial value.

 

[Zigner]

I asked a friend and ex-colleague of mine for a simple declaration (or affidavit) describing his situation at Defendants. However, as condition for his receiving severance payment from employment, he signed a confidentiality agreement with them. If necessary, I would ask the court to keep his statement under seal, for privacy concerns.

Do the needs of a U.S. legal proceeding trump confidentiality, or could my friend be at risk for breaching that clause? He would not be disclosing any trade secrets or information of commercial value.

Your friend needs his own legal counsel to answer his questions.

 

[Paul84]

Your friend needs his own legal counsel to answer his questions.

Thanks, Zigner. Probably not worth the trouble then. I didn't find any definitive cases about the topic online.

 

[Paul84]

Hearsay: if I comment on it in writing (as false), can opponent introduce?

My case is document intensive: two individuals (of the defendants) and I were all working in different continents and time zones, so most communication was via email and thus documented (fortunately). Much of their documentation contains multiple chains of unreliable hearsay. If I have commented in writing on this hearsay in pre-trial documents (mainly to condemn it as provably false), could defendants then make an argument that the court should allow them to introduce the hearsay at trial or in a summary-judgment motion? Defendants have not indicated in disclosures that anyone but those two individuals would appear at trial, and neither of the two has personal knowledge of the issues relayed as hearsay (whereas, I do).

 

[Paul84]

Adobe Acrobat Pro for Bates Numbering?

Anyone have experience with Bates numbering?

Defendants have Bates-numbered a lot of documents, many of which I'll use. However, for my own documents, what is the best Bates numbering software?

Are there any (free) open-source options, or could I just get a month-to-month Adobe Acrobat Pro subscription and use that? I've heard I have to convert everything first to PDF to Bates number, so I'm assuming that I need Acrobat Pro ...