Federal Procedure

Second Circuit Certifies Questions to the NY Court of Appeals

Gavel2 Last week, in Pachter v. Bernard Hodes Group, Inc.06-3344-cv, the Federal Court of Appeals for the Second Circuit certified the following questions to the New York Court of Appeals:

  • Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?
  • In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

Hat tip:  Second Opinions


Useful Resource Regarding Certifying State Law Questions From the Second Circuit to the NY Court of Appeals

Checkmark The New York Court of Appeal's website offers a very informative  and thorough "practice handbook" that summarizes the procedure for the certification of state law questions by the Second Circuit Court of Appeals to the New York Court of Appeals.

Should you be interested in this resource, the handbook can be found here.


Second Circuit Amends Rule Regarding Oral Argument

CheckmarkAs detailed here at the Second Circuit's web site, effective August 27, 2007, Interim Local Rule 34 has been adopted pending further action by the Court.   This rules affects the procedures for requesting oral argument before the court, making it more difficult to obtain permission to present an oral argument to the Court.

As explained inthe Court's August 27th Order, comments regarding the new rule are being accepted until September 27th:

IT IS HEREBY ORDERED, that the Local Rules of the United States Court of Appeals for the Second Circuit are hereby amended on an interim basis effective immediately by the adoption of Interim Local Rule 34, which is set forth below (bolded text) and replaces the current Local Rule 34. The Court proposes furthermore to adopt Interim Local Rule 34 on a permanent basis following publication for notice and comment. The Clerk of Court shall publish the new Interim Rule and Proposed Permanent Rule inviting comment to be submitted by September 27, 2007.

Anyone wishing to comment should do so, in writing, to: Catherine O’Hagan Wolfe Clerk of Court United States Court of Appeals 40 Foley Square New York, NY 10007.

The Interim Local Rule 34(a)(2) joint statement to be submitted by counsel can be found here.


Electronic Discovery Rule Wizard

EdiscoveryI recently discovered a really useful resource on Law.com for those of you who practice in federal court:  The Electronic Discovery Rule Wizard.

This tool provides an easily navigated wizard that is somewhat of an "e-discovery for dummies". 

It's simple to use.  Click on a rule, and the full text of the rule is displayed on the screen. 

You can then explore the rule by clicking on the "summary", "checklist" and "resources" tabs.  Within each section you'll find a ton of useful and concise information regarding the rule.

Check it out, why don't you?


New Federal Rules for Second Circuit Court of Appeals

Check The New York Court of Appeals for the Second Circuit has issued new rules, as fully explained in this article from the Brooklyn Daily Eagle:

The Local Rules of the United States Court of Appeals for the Second Circuit have been amended effective Tuesday, June 26, 2007, by the adoption of Local Rule 32.1, which is set forth below and replaces the current Interim Local Rule 0.23.

Local Rule 32.1. Dispositions by Summary Order

(a) Use of Summary Orders

The demands of contemporary case loads require the court to be conscious of the need to utilize judicial time effectively. Accordingly, in those cases in which a decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect), the ruling may be by summary order instead of by opinion.

(b) Precedential Effect of Summary Orders Rulings by summary order do not have precedential effect.

(c) Citation of Summary Orders

(1) Citation to summary orders filed after Jan. 1, 2007, is permitted.

(A) In a brief or other paper in which a litigant cites a summary order, in each paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or be accompanied by the notation: “(summary order).”

(B) Service of Summary Orders on Pro Se Parties: A party citing a summary order must serve a copy of that summary order together with the paper in which the summary order is cited on any party not represented by counsel unless the summary order is available in an electronic database which is publicly accessible without payment of fee (such as the database available at https://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such a database, the citation must include reference to that database and the docket number of the case in which the order was entered.

(2) Citation to summary orders filed prior to Jan. 1, 2007, is not permitted in this or any other court, except in a subsequent stage of a case in which the summary order has been entered, in a related case, or in any case for purposes of estoppel or res judicata.

(d) Legend

Summary orders filed after Jan. 1, 2007, shall bear the following legend:

SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to summary orders filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party citing a summary order must serve a copy of that summary order together with the paper in which the summary order is cited on any party not represented by counsel unless the summary order is available in an electronic database which is publicly accessible without payment of fee (such as the database available at hffp://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such a database, the citation must include reference to that database and the docket number of the case in which the order was entered.

Comment: Summary orders are issued in cases in which a precedential opinion would serve no jurisprudential purpose because the result is dictated by pre-existing precedent. Such orders are prepared chiefly for the guidance and information of counsel and parties, and the district court (or other adjudicator) that issued the ruling from which the appeal is taken, all of whom are familiar with the facts, procedural history, and issues presented for review. Summary orders are therefore often abbreviated, and may omit material required to convey a complete, accurate understanding of the disposition and/or the principles of law upon which it rests. Like the great majority of the circuits, the court has chosen to make summary orders non-precedential. Denying summary orders’ precedential effect does not mean that the court considers itself free to rule differently in similar cases. Non-precedential summary orders are used to avoid the risk that abbreviated explanations in summary orders might result in distortions of case law. Resolving some cases by summary order allows the court to devote more time to opinions whose publication will be jurisprudentially valuable.

IT IS SO ORDERED.

FOR THE COURT: CATHERINE O’HAGAN Wolfe CLERK OF COURT

Dated: June 26, 2007

Hat tip--Second Opinions


2nd Circuit Notice Regarding Change in Reimbursement for Appointed Counsel

A notice from the United States Court of Appeals for the Second Circuit was posted in the Monroe County Bar Association's April newsletter that might be of interest to some of my readers.  I wasn't able to locate a similar announcement on line to link to however:

The Criminal Justtice Act ("CJA") Committee of the United States Court of Appeals for the Second Circuit has decided that effective immediately the Court will not reimburse CJA appointed counsel for any costs associated with the production of briefs and appendices other than copying and binding of the necessary copies of those documents, the original text of which, including covers, tables of contents, table of cases, and any necessary certifications, should be prepared by counsel using appropriate word processing and formatting in compliance with the requirements of federal and local rules of appellate procedure.

All bills submitted for reimbursement for copying and binding of briefs performed by a printing house or copying service must be fully itemized and must indicate each component of the total charge for such services.  Failure to do so will result in those costs be disallowed.


Second Circuit Forms Committee to Address Grievances Against Attorneys

As reported in this Law.com article, a seven person committee has been formed which will investigate and file disciplinary matters that are referred to it by the 2nd Circuit.  (Hat tip: NYSBA General Practice Section Blog

From the article:

The 2nd Circuit has formed a new committee to handle grievances against attorneys, a move officials said signals a more proactive role in evaluating ethics issues...

Michael Jordan, counsel to Chief Judge Jacobs, explained Monday that the committee has existed in the past but had "sort of fallen out of use." "It wasn't particularly active and the chief judge and the court thought it would be in the court's best interest to make a concerted effort to ramp it back up," he said.

Formed under Local Rule 46(h), the committee will accept referrals from the court on "any accusation or evidence of misconduct" that occurs before the court and violates the rules of professional conduct or responsibility.  The matters "may include not only acts of affirmative misconduct but negligent conduct of counsel."

Jordan said the formation of the committee is intended by the court to take a more active role in policing the profession. The court currently votes on attorney disciplinary matters but largely on reciprocal basis --suspending or disciplining attorneys based on actions taken against those attorneys in other state or federal courts.

Under the rule, the committee must give an attorney written notice of the charges against him or her and give the attorney at least 10 days' notice for a hearing on the matter.
Attorneys called to a hearing have a right to be represented by counsel to present witnesses and enter evidence on the attorney's behalf and to confront and cross-examine any witnesses called by the committee.

Once the committee has filed its recommendations with the court, the charged attorney would have 20 days to send the court a statement opposing the recommendation or inform the court of anything that might mitigate the recommendation.

The committee also will have the discretion to refer matters to local bar associations.

This is an interesting development and one that you should be aware of if you happen to practice in the federal courts, as many of us do.


New Federal E-Discovery Rules Effective Today

As I'd posted about previously, the amendments to the Federal Rules of Civil Procedure relating to electronic discovery changed as of today's date, December 1, 2006.  There's an interesting AP article about the effect of the new rules on U.S. businesses.  From the article:

The new rules, which took effect Friday, require U.S. companies to keep better track of their employees' e-mails, instant messages and other electronic documents in the event the companies are sued, legal experts say...

Under the new rules, an information technology employee who routinely copies over a backup computer tape could be committing "virtual shredding" once a lawsuit has been filed, said Alvin F. Lindsay, a partner at Hogan & Hartson LLP and expert on technology and litigation.

Companies still could routinely purge their archives if the data aren't relevant to cases companies have pending or expect to face, though specific sectors such as financial services remain governed by other data-retention rules.

Company lawyers and information-technology staff will have to work more closely together to ensure that routine erasing of backup data doesn't pose legal problems, Lindsay said, while also ensuring that lawyers know where their company's data are stored.

The new rules make it more important for companies to know what electronic information they have and where, especially because of a provision that requires lawyers to provide information much earlier in a lawsuit than before.

Let's hope the vast majority of businesses are aware of the impact of the new rules upon the possibility of future litigation.  If not, it'll just make lawyers' jobs that much harder.  I'm not holding my breath.  How about you?


Electronic Discovery Requirements of the FRCP To Be Amended Effective December 1st

On December 1, 2006, amendments to the Federal Rules of Civil Procedure relating to electronic dicovery will go into effect.  The amendments include revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. 

The amendments can be found here at the US Courts website.  A good summary of the rule changes can be found here.