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(excerpted from Manual for Complex Litigation, '95 ed.)

21.3 Management of Issues
.31 Relationship to Discovery
.32 Pleading and Motion Practice
.33 Identifying, Narrowing, and Resolving Issues
.34 Summary Judgment

21.31 Relationship to Discovery

The sine qua non of management of complex litigation rests on the definition of the issues in the litigation (see infra section 21.33). Unless the controverted issues have been identified and defined, the materiality of facts and the scope of discovery (and later of the trial) cannot be determined. The pleadings, however, will often fail to define the issues with clarity, and the parties may lack sufficient information at the outset of the case to enable them to arrive at definitions with certainty. Probably the most important function the judge performs in the early stages of litigation management is to press the parties toward identification, definition, and narrowing of issues.

The initial conference should be used to start this process. Efforts to clarify and narrow the issues may be met by resistance from the plaintiffs, the defendants, or both plaintiffs asserting that substantial discovery must first be conducted, and defendants contending that plaintiffs must first refine their claims.

Nonetheless, the judge must start the process of defining and structuring the issues, albeit tentatively, to establish the appropriate sequence and limits for discovery. Although some issues may surface only after discovery is underway, the controlling factual and legal issues can almost always be identified by a thorough and candid discussion with counsel at the initial conference.

The court should use the pleadings and the positions of the parties developed at the initial conference as a starting point for identifying the issues on the basis of which to construct the discovery plan. Discovery may then provide information for the further defining and narrowing of issues, which may in turn lead to revision and refinement of the initial discovery plan.

21.32 Pleading and Motion Practice

The process of defining and narrowing issues will be advanced if pleadings are finalized and emerging legal issues are promptly resolved by appropriate motions. The court should first establish a schedule for the filing of all pleadings in the case, including counterclaims, cross claims, Third-party complaints, and amendments to existing pleadings adding parties, claims, or defenses, to avoid later enlargement of issues and expansion or duplication of discovery.

The court may also suspend filing of certain pleadings if statutes of limitations present no problems and make orders providing that specified pleadings, motions, and orders, unless specifically disavowed by a party, are "deemed" filed in cases later brought, transferred, or removed, without actually filing the document.

The pleadings may disclose issues of law that can be resolved by motion to dismiss, to strike, or for judgment on the pleadings. Challenges to the court's personal or subject matter jurisdiction should generally be given priority, since they are dispositive.

The legal insufficiency of a claim or defense may be raised by motion for failure to state a claim or for partial judgment on the pleadings. If the court considers evidence in connection with such a motion, the motion must be treated as one for summary judgment. *fn.100 Insufficient defenses and irrelevant or duplicative matter may be stricken under Rule 12(f).

If a motion concerns a pivotal issue which may materially advance the termination of the litigation, the court may certify its ruling for interlocutory appeal under 28 U.S.C. 1292(b) if, in the court's judgment, there is "substantial ground for difference of opinion." The court may also provide for appellate review by entering final judgment as to a particular claim or party under Fed.R.Civ.P. 54(b).

Motion practice can be a source of substantial cost and delay unless appropriately managed. Following are some points to consider:

* Because a motion under Rule 12 can result in unnecessary expense if the asserted defect can be cured by amendment, it is generally advisable for a party to notify the opposing party and the court of its intention to file such a motion to ascertain whether it will serve to narrow the issues in the case.

* Some courts have found prefiling conferences useful in avoiding useless or unnecessary motions.

* Some motions can be decided on the basis of oral presentations and reference to controlling authority, without the filing of briefs.

* The court may limit the length of briefs and of appendices, affidavits, declarations, and other supporting materials, and require joint briefs whenever feasible.

* The court may limit the filing of reply or supplemental briefs, or motions for reconsideration, requiring leave of court for good cause shown.

* Prompt rulings by the court will expedite the litigation and result in savings by avoiding unnecessary litigation activity by the parties; whenever possible, judges should rule from the bench, avoiding the delay caused by the preparation of a written disposition.

* Some courts issue tentative rulings on motions in advance of the motion hearing. If the parties accept the rulings, no hearing is necessary. If there is a hearing, the parties can direct their arguments to the issues that concern the court.

* In multiparty litigation, particular attention needs to be given to scheduling. Counsel should be directed to inform the court as soon as possible of any motion to be filed, with sufficient time allowed for opposing counsel to respond and the court to review the parties' submissions in advance. Expedited motions should be avoided unless they concern matters that will delay further proceedings if not resolved. Motion hearings should be specially set rather than be part of a regular motion docket or calendar call of the court, but they may be combined with other conferences in the litigation.

21.33 Identifying, Narrowing, and Resolving Issues

As noted, the process of identifying, defining, and narrowing issues begins at the initial conference. The attorneys may be directed to confer and submit a tentative statement of disputed issues in advance, agreed on to the extent possible. The court should treat the conference as an opportunity to learn about the material facts and legal issues, and counsel should treat it as an opportunity to educate the judge. At the same time, counsel will learn about the opponent's case and gain a better perspective on their own, helping them to evaluate their case more realistically.

For the process to be productive, the judge must be willing to admit ignorance and ask even basic questions. The court's questions should probe into the parties' claims and defenses and seek specific information. The judge, instead of being satisfied, for example, with a statement that defendant "was negligent" or "breached the contract," should insist that the attorneys describe the material facts they intend to prove and the manner in which they intend to prove them. The judge should inquire not only into the amount of damages claimed but also into the proposed proof and manner of computation, including the evidence of causation, and the specific nature of any other relief sought (data which may also be subject to mandatory prediscovery disclosure).

Similar inquiry should be made of the defense: what specific allegations and claims it disputes, the specific defenses it intends to raise, and the proof it intends to offer. This process should lead to identification of the genuine disputes and may facilitate admissions and stipulations between the parties, eliminating the need to litigate undisputed issues and narrowing the scope of the remaining issues. The parties may be able to stipulate to the authenticity of documents or the accuracy of underlying statistical or technical data while reserving the right to dispute assumptions, interpretations, or inferences drawn from the evidence.

Facts may be shown to be subject to judicial notice, after the opposing party has had an opportunity to proffer contradictory evidence. *Fn.101

A variety of techniques have been used to facilitate the identification, defining, and narrowing of issues in complex litigation, including the following:

* nonbinding statements of counsel, such as those that may be required at the initial conference these may be updated periodically by written reports or oral statements at later conferences;

* voluntary abandonment of tenuous claims or defenses by the parties, often after probing by the court into the likelihood of success and the potential disadvantages of pursuing them;

* requiring counsel to list the essential elements of the cause of action this exercise, designed to clarify the claims, may assist in identifying elements in dispute and can result in abandonment of essentially duplicative theories of recovery;

* formal amendments to the pleadings, including those resulting from an order under Fed.R.Civ.P.12 striking allegations or requiring a more definite statement;

* use of the court's powers under Fed.R.Civ.P. 16(c)(1) to eliminate insubstantial claims or defenses; *fn.102

* contention interrogatories and requests for admission, especially when served after adequate opportunity for relevant discovery;

* rulings on motions for full or partial summary judgment;

* sanctions for violations of Fed.R.Civ.P. 16, 26, and 37 in the form of orders precluding certain contentions or proof;

* requiring, with respect to one or more issues, that the parties present a detailed statement of their contentions, with supporting facts and evidence the statements may be exchanged, with each party marking those parts it disputes; the order directing this procedure will provide that other issues or contentions are then precluded and no additional evidence may be offered absent good cause;

* requiring the parties to present in advance of trial proposed instructions in jury cases, or proposed findings of fact and conclusions of law in nonjury cases;

* conducting preliminary hearings under Fed.R.Evid. 104 on objections to evidence; and

* conducting a separate trial under Fed.R.Civ.P. 42(b) of issues that may render unnecessary or substantially alter the scope of further discovery or trial; special verdicts and interrogatories may be helpful, and on some issues the parties may waive jury trial.

21.34 Summary Judgment

Summary judgment motions can help define, narrow, and resolve issues. As the Supreme Court has stated, summary judgment is "not . . . a disfavored procedural shortcut, but rather . . . an integral part of the Federal Rules." *fn.103 If granted, summary judgment may eliminate the need for further proceedings or at least reduce the scope of discovery or trial. Even if denied, in whole or in part, the parties' formulations of their positions may help clarify and define issues and the scope of further discovery.

In addition, the court may, under Fed. R. Civ. P. 56(d), issue an order specifying those facts which "appear without substantial controversy" and shall be "deemed established" for trial purposes. Summary judgment proceedings can, however, be costly and time consuming.

To avoid the filing of unproductive motions, the court may require a prefiling conference at which it can ascertain whether issues are appropriate for summary judgment, whether there are disputed issues of fact, and whether the motion, even if granted, is likely to expedite the termination of the litigation.

In some circumstances, a separate trial of an issue bifurcated under Rule 42(b) may be a preferable alternative. Although summary judgment is as appropriate in complex litigation as in routine cases *fn.104 indeed it offers the potential of substantial savings of money and time and, as a general proposition, the standard for deciding a summary judgment motion is the same in all cases, *fn.105 the court needs to be concerned with whether the record is adequately developed to support summary judgment. Complex litigation may present complicated issues not as readily susceptible to resolution as issues in more familiar settings. More extensive discovery may be necessary to ensure an adequate record for decision. *fn.106 The party opposing summary judgment should, however, be required to make the necessary showing under Rule 56(f) in support of its request for additional discovery. *fn.107

To avoid expenditure of effort on pretrial activities that may be rendered unnecessary if the motion is granted, the schedule should call for filing of the motion as early as possible to maximize the potential benefits that may be realized from its disposition while affording the parties an adequate opportunity to conduct discovery relevant to the issues raised by the motion, obtain needed evidence, and develop a sufficient record for decision. *fn.108 The court must use its discretion to determine what constitutes "adequate time" and what information is "essential" in opposition; requiring all discovery to be

Allowing adequate time for preparation before the motion is filed should reduce the need for granting the opposing party a continuance under Rule 56(f) to obtain affidavits or conduct further discovery to oppose the motion. In support of its request for a continuance, the party must specify (1) the discovery it proposes to take, (2) the evidence likely to be uncovered, and (3) the material fact issues that evidence will support. Under Rule 56(c), the court is to rule on the motion on the basis of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." *fn.109

The affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." *fn.110 Because of the volume of discovery materials in complex litigation, and the potential for disputes over admissibility, these provisions can be a particular source of problems for the court. The court should direct the moving party to specify the material facts claimed to be undisputed; it should direct the opposing party to specify the evidence upon which a claimed factual dispute is based. *fn.111

Objections to evidence may be resolved by a hearing under Fed. R. Evid. 104, if necessary. *fn.112 Each party should also be required to submit a clear and unambiguous statement of the theories of its case.

Such statements in the motion and the opposition will minimize the risk of error, as will the issuance of a tentative ruling by the court before hearing the motion. The court should fix a schedule for the filing of moving and opposition papers (and replies, if needed). The ruling on the motion should be in writing or be read into the record, and it should lay out the court's reasoning. The court should try to decide such motions promptly; deferring rulings on summary judgment motions until the final pretrial conference tends to defeat their purpose of expediting the disposition of issues.

Footnotes

100. Fed. R. Civ. P. 12(b), (c).

101. See Fed. R. Evid. 201; Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 332 (1949); William J. Flittie, Judicial Notice in the Trial of Complex Cases, 31 Sw. L.J. 819, 82939 (1978).

102. See, e.g. , Diaz v. Schwerman Trucking Co., 709 F.2d 1371, 1375 n.6 (11th Cir. 1983) (noting trial court's power under Rule 16 to summarily decide matters where no issue of fact exists); Holcomb v. Aetna Life Ins. Co., 255 F.2d 577, 58081 (10th Cir. 1958) (trial court may enter judgment at Rule 16 pretrial conference if no issue of fact); Fed.R.Civ.P. 16(c) advisory committee's note; cf. Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 135657 (5th Cir. 1983) (judge may summarily dispose of unsupportable claim after Rule 16 conference held during recess in trial).

103. Celotex v. Catrett, 477 U.S. 317, 329 (1986).

104. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (approving grant of summary judgment in complex antitrust case).

105. See William W Schwarzer et al., The Analysis and Decision of Summary Judgment Motions (Federal Judicial Center 1991), reprinted in 139 F.R.D. 441 (1992) [hereinafter Summary Judgment]. For U.S. Supreme Court cases discussing the standard and the parties' respective burdens, see Eastman Kodak v. Image Technical Servs., 112 S. Ct. 2072 (1992); Celotex, 477 U.S. 317; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita, 475 U.S. 574.

106. See William W Schwarzer and Alan Hirsch, Summary Judgment After Eastman Kodak, 45 Hastings L.J. 1 (1993).

107. See, e.g., Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 138890 (Fed. Cir. 1989); Dowling v. Philadelphia, 855 F.2d 136, 13940 (3d Cir. 1988); VISA v. Bankcard Holders, 784 F.2d 1472, 1475 (9th Cir. 1986).

108. See Celotex , 477 U.S. at 327 (court must allow "adequate time" for discovery); Anderson, 477 U.S. at 2525 n.5 (nonmoving party must have opportunity to discover information "essential to [its] opposition"). The court must use its discretion to determine what constitutes "adequate time" and what information is "essential" in opposition; requiring all discovery to be

109. Fed. R. Civ. P. 56(c). The court may also hold an evidentiary hearing under Fed. R. Civ. P. 43(e), but when the motion cannot be decided because the parties' submissions are unclear, the court may instead simply require additional, clarifying submissions.

110. Fed. R. Civ. P. 56(e). The requirements of personal knowledge and admissibility in evidence presumably apply also to the use of depositions and interrogatory answers. See 10A Charles A. Wright et al., Federal Practice and Procedure 2722 (2d ed. 1983).

111. For example, the parties should identify relevant deposition evidence by deponent, date, place of deposition, and page numbers; similarly detailed information should be provided for all other evidence submitted. Copies of relevant materials should be included with the moving and opposing papers. See Summary Judgment, supra note 105, at 48081 & n.221; Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir. 1991).

112. See In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983).

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