Spring 2013 Newsletter The Federal Bar Association, San Diego Chapter

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1 Spring 2013 Newsletter The Federal Bar Association, San Diego Chapter Recipient of the Federal Bar Association Outstanding Newsletter and Meritorious Newsletter Awards Brown Bag Luncheon with Judge Irma E. Gonzalez By Peter Dahlquist, Esq. Cooley LLP On January 30, 2012, Judge Gonzalez hosted a brown bag luncheon where she spoke about court procedures, the importance of written work product, and what to expect in her courtroom. Judge Gonzalez began her career on the bench as a federal magistrate judge in the Southern District where she served from 1984 to She was then appointed to serve as a San Diego Superior Court Judge from 1991 to In 1992, Judge Gonzalez was then nominated to the United States District Court for the Southern District. She also served as Chief Judge in the Southern District from 2005 to Recently, on March 29, 2013, she assumed senior status. After her years of service on the bench, she says the best part of being a judge is watching good lawyers try cases. Why Judge Gonzalez took senior status. Judge Gonzalez made the decision to take senior status for two reasons. First, she wanted to take a breather, and second, she wanted to create a vacancy on the bench allowing a new judge to be appointed. In her view, there are so few slots, yet so many people who are qualified to serve as federal judges. Criminal case load. With over 5,200 criminal cases in 2012, the Southern District was one of the busiest districts in the country. Before taking senior status, Judge Gonzalez had about 190 criminal and 130 civil cases on her docket. Most criminal cases do not go to trial, and the district courts are left with numerous sentencing hearings. Law clerks. All active judges have two or three law clerks who assist judges by doing research and drafting bench memoranda. Judge Gonzalez does not mind when lawyers call her chambers to ask the clerks procedural questions. Her pet peeve, however, is when lawyers try to discuss the merits of a case with the clerks. Importance of written work product. Your written work product is your first impression. The judge will always ask the law clerk how the lawyer did in a brief. Judges remember lawyers, their writing ability, Inside This Issue and their oral advocacy skills. Also, judges talk about lawyers, so your reputation will stick with you. Importance of summary judgment argument. Judge Gonzalez always has oral arguments for motions for summary judgment and she typically does not rule from the bench. So often cases are resolved before trial and Judge Gonzalez laments that attorneys have less and less opportunities to come to court. Voir Dire. Judge Gonzalez allows lawyers to conduct voir dire. She has noticed over the years that juries draw conclusions about lawyers very early on and they notice how lawyers interact. Side Bar. Judge Gonzalez will not hold a side bar unless it is absolutely necessary. If a party has a matter to discuss with the court outside the presence of the jury, it is better to deal with those issues before the jury arrives in the morning or during lunch. Appeal of a discovery ruling. In response to a question from the audience, Judge Gonzalez acknowledged that appeals of discovery rulings are rare. But she also said that if you really have a problem with a discovery ruling, you should appeal because sometimes there is merit to an appeal. Pro bono program. Judge Gonzalez ended the brown bag lunch by discussing the Southern District pro bono program. The program provides pro bono legal services to indigent civil plaintiffs. Once a firm or attorney is selected to participate in the program, they will remain on the pro bono panel for two years. Any firm or attorney who is placed on the panel should be willing to accept the appointment absent a conflict. She encouraged attendees to sign up, but warned, if you sign up, you will get called. Welcome New Members to the San Diego Chapter of the Federal Bar Association 1. Brown Bag Luncheon with Judge Irma E. Gonzalez 4. A Most Peculiar Application of the False Claims Act Cynthia Speegle Nancy Berner 2. Disclosure and Discovery in the Southern District: Getting Your Case Started: Rules 16 and Brown Bag Luncheon with Judge Marilyn L. Huff 5. Newly Appointed Bankruptcy Judge Christopher B. Latham 6. Judge Gonzalo P. Curiel Judicial Profile 7. Disclosure and Discovery: an Explanation of Written Discovery in Federal Court Bryan Blumenkopf William Banning Carolina Bravo-Karimi Tracy Schimelfenig Charlotte Kaiser Jeff Sekel Jennifer Hegemier Duane Horning Haeji Hong THE FEDERAL BAR ASSOCIATION NEWSLETTER - 1

2 Disclosure and Discovery in the Southern District: Getting Your Case Started: Rules 16 and 26 By Christian S. Scott, Esq. Scott Law Group P.C. On January 13, 2013, the Southern District s Presiding Magistrate Judge Nita L. Stormes and attorneys Elizabeth Balfour and Jason Forge met with members of the local bar to discuss their perspectives on Federal Rules of Civil Procedure 16 and 26, including on conducting an effective Rule 26(f) conference. Ms. Balfour is a partner with Sheppard Mullin Richter & Hampton LLP s litigation department. Mr. Forge is a partner with Robbins Geller Rudman & Dowd LLP. Overview of Necessary vs. Attorney-Driven Discovery Judge Stormes started the presentation by describing the basic types of disclosures that are required by Rule 26. These classifications include fact witnesses, expert witnesses, and documents and other evidence. As Judge Stormes explained, Rule 26 is set up to avoid delay, and the expense of what she characterized as old school discovery. Rule 26 requires the parties to engage in a meaningful discussion before taking affirmative discovery. Judge Stormes noted that the Rule 26 stay on attorney-driven discovery is intended to be used by the parties as an opportunity to work together early on to prepare a meaningful discovery plan to resolve the case through settlement or trial. Judge Stormes explained that a Rule 26(f) conference can be initiated by one of the attorneys by simply picking up the phone and calling the other side. It is unlikely, however, that opposing counsel will be eager to engage in a Rule 26 conference if a dispositive motion is pending. The second option is to wait for the court to set a Rule 26(f) conference completion date. A discovery plan and date for a Case Management Conference will be shortly set as well. Interestingly, Judge Stormes noted that in some instances it might be appropriate to request the court to set an early Rule 26(f) conference via an ex parte application. For example, a case in which a preliminary injunction is sought may require the applicant to obtain discovery very early in the litigation in order to prove up the request for an injunction. In those instances, the judge may set an early Rule 26(f) conference upon a showing of good cause by the applicant. Judge Stormes noted that such situations are the exception, not the rule. Managing Client Expectations: ESI and Protective Orders Ms. Balfour explained the importance of conducting an early investigation of the claims to ensure that the Rule 26(f) conference is productive and results in a meaningful discovery plan. She pointed out that if a witness, document, or discovery method is Elizabeth Balfour, Magistrate Judge Nita Stormes and Jason Forge THE FEDERAL BAR ASSOCIATION NEWSLETTER - 2 not in the Rule 26(f) report, it might not be allowed particularly if opposing counsel is uncooperative. When thinking about what the Rule 26(f) report should contain, she asks herself what she would want in her trial notebooks at the time of trial. To avoid the potential for overlooking something important, Ms. Balfour s approach is to keep her client constantly engaged in the process to minimize the risk of missing something. Careful attention should be given to the process of identifying, locating, and contacting potential witnesses who may have information that is pertinent to the litigation. In her experience, the best witnesses and sources of information for a corporation are often the people in the sales, finance, and other corporate departments rather than the in-house lawyer contact. Mr. Forge shared that his goal is to not be the jerk in the room. Over the years, he has learned that it is often not worth engaging in a dispute over every request by the other side. Mr. Forge s goal, when participating in a Rule 26(f) conference, is to focus on what is really needed to prove his case while at the same time being cooperative with opposing counsel. He has found that the approach of being cooperative throughout the process often pays off in the end when it matters most. As Mr. Forge noted, it is not always easy to do so if his client s expectations have not been set. He recommends managing client expectations early in the litigation regarding how the legal process works, and what information will likely be obtained or protected from disclosure. Ms. Balfour also stressed the importance of setting client expectations when developing a discovery plan. A large lawsuit may involve tens of thousands, if not hundreds of thousands, of documents. It is very easy for the costs of litigation to grow exponentially as the litigation progresses. Ms. Balfour keeps her client engaged in the discovery process to makes sure that the client has a real understanding of the costs that will likely be incurred because of the agreed-to discovery plan in the Rule 26(f) report. Doing so improves the chances that the discovery plan will reflect the litigation budget and client expectations. Ms. Balfour and Mr. Forge agreed that issues related to electronically stored information ( ESI ) often present challenges to a Rule 26(f) conference. Identification and production of in large-scale litigation is a difficult and complex process. They were both in agreement that a cooperative approach among counsel is the best way for resolving the challenges that are presented by ESI. Mr. Forge stated that the plaintiff and defendant have a shared goal of using obtained ESI. By working together, Continued on Page 8

3 Brown Bag Luncheon with Judge Marilyn L. Huff By Carolina Bravo-Karimi, Esq. Wilson Turner, Kosmo LLP Morgan Suder J.D. Candidate May 2013 University of San Diego School of Law On April 11, 2013, the San Diego Chapter of the Federal Bar Association, in conjunction with the Association of Business Trial Lawyers, presented a brown bag luncheon with the Honorable Marilyn L. Huff for a discussion on insights into her courtroom. Judge Huff began her remarks by proudly introducing her law clerks and courtroom staff. She then distributed to the audience an article about her perspective on patent case management and the America Invents Act, as well as a sample order following a pretrial conference. Before discussing her preferences on motion practice and courtroom behavior, Judge Huff provided a general overview of the Southern District of California s caseload, which is the sixth largest caseload in the nation. An average district court has 411 civil cases and 125 criminal cases per judge. In this district, however, each judge has approximately 448 criminal cases and 260 civil cases, which means that the majority of cases in this district are criminal in nature. Judge Huff has ten to fifteen trials a year, with approximately two-thirds criminal trials and one-third civil trials. Motion Practice Due to the large volume of litigation in this district, the majority of the judges decisions are based on the parties briefings. Judge Huff appreciates well-written motions that concisely frame the relevant issues. For specific guidance, she recommends the Rutter Group Practice Guides for the nuts and bolts on motion practice, and Think Like A Writer for the basic principles of writing. Judge Huff cautions against using out-of-circuit or district court cases, as they are not persuasive. Instead, motions should include the proper citations for controlling authority and necessary factual explanations. Attorneys should also address conflicting caselaw and explain why that authority does not apply to the case at hand. Judge Huff specifically addressed some of the most common motions in civil cases. For summary judgment motions, she does not recommend providing separate statements of facts and law. Attorneys should file summary judgment motions in advance of the deadline; discovery does not have to be complete if there are no triable issues of fact. Regarding motions for an injunction, parties should serve their papers on the opposing side and provide them with the opportunity to state their opinion before going forward with the injunction. For pretrial orders, a separate set of pre-marked exhibits should be available for the courtroom deputy. As for criminal cases, a member of the audience asked about illegal reentry cases under 8 U.S.C Judge Huff likened these motions to summary judgment motions in civil cases, and explained that attorneys should focus on whether the elements have been met to find the defendant guilty of illegal reentry and whether or not there was legal error. Judge Huff also appreciates specific citations to the immigration judge s transcript, as she decides these motions on a case-by-case basis. Oral Arguments Oral arguments are only scheduled when there is a conflict in the law or if Judge Huff is struggling with her decision. The oral argument should be a meaningful exchange of arguments that focus on the questions or concerns she may have. Attorneys should remain flexible in their presentations. If lawyers plan to use handouts or power point slides to augment their presentation, they should bring a copy for the opposing side and for the law clerk. Judge Huff will generally allow for supplemental briefing if it will help her make a better informed decision. Judge Huff receives a draft of the proposed order from her law clerks on the Thursday before the motion hearing to allow ample time to personally review the arguments and the applicable law. Judge Huff strongly dislikes motions to dismiss. As such, hearings are not usually held on motions to dismiss. If an oral argument is scheduled, it is usually for summary judgment motions and claim construction disputes. In the Southern District of California, parties are required to identify no more than ten disputed claim terms for construction. However, Continued on Page 9 THE FEDERAL BAR ASSOCIATION NEWSLETTER - 3

4 A Most Peculiar Application of the False Claims Act By Robert Yeh, Esq. Fish & Richardson P.C. This July, the 100th edition of the Tour de France will take place amidst glorious fields of sunflowers and along the towering peaks of the Alps and the Pyrenees. As much as the adoring public and sporting authorities would like to celebrate this centennial race, professional cycling is suffering under a dark cloud of devastating doping scandals. Winners of nine of the last fourteen editions of the race were stripped of their titles because they used performance enhancing drugs. 1 Lance Armstrong stood atop the Tour de France podium a record seven consecutive times in , after a miraculous comeback from life-threatening cancer. In October 2012, after a multi-year investigation, the United States Anti-Doping Agency offered the stunning conclusion that Mr. Armstrong perpetrated one of the greatest frauds in the history of sports. In February 2013, after over a decade of denials, Mr. Armstrong famously confessed to Oprah Winfrey that he did use performance-enhancing drugs for each of his Tour de France victories. While Lance Armstrong may find his confession cathartic, it does nothing for the pocket books of his former sponsors, who should not have had any incentive to enter into sponsorship agreements with a cheating athlete. Because the doping transgressions and concomitant contract breaches took place many years ago, the statutes of limitations for commencing private contract actions to claw back sponsorship dollars have elapsed in nearly all cases. This is not to say that Mr. Armstrong is not facing liability under other legal theories from entities such as insurance companies that paid him bonuses for winning races and a British newspaper 2 that paid him to settle a libel suit that he brought when the paper alleged in 2006 that he was doping. But so far, none of Mr. Armstrong s personal or team sponsors, such as Trek Bicycles, Yahoo!, Volkswagen, Subaru, Nike, Oakley, Discovery Communications, and Advanced Micro Devices, have sued him to recover sponsorship monies. The reason may be twofold. First, any media association with Mr. Armstrong now is best avoided lest his new-found notoriety becomes contagious. And second, Mr. Armstrong s doping practices in fueled an unprecedented winning streak that enhanced rather than detracted from the sponsors return on investment. So even if a former sponsor were to prevail on the merits of a contract suit against Mr. Armstrong, damages may not be available. So what does performance enhancing drug use in cycling have to do with federal law and the federal bar? As it turns out, the United States Postal Service, hence the federal government, spent over $31 million sponsoring Armstrong s team in And unlike the other sponsors, the Postal Service is an independent agency of the 1 One reason for the presence of cheating in professional sports could be that most of the time, cheating pays off. The punishment for getting caught is usually no more than a trivial administrative suspension by the sport s governing body (such as in baseball and football in the United States), or a longer suspension by the national anti-doping agency (such as in cycling and track and field). In response to the growing tsunami of doping scandals, in recent years several countries have toughened penalties for possession and trafficking of performance enhancing drugs. Italy and France lead the way in this regard by imposing serious criminal liability on athletes and their entourage. 2 The Sunday Times. federal government, and as such falls under the protection of the False Claims Act (31 U.S.C ) ( FCA ) which imposes civil and/or criminal liabilities on persons who defraud the United States government. The FCA prohibits false or fraudulent claims for payment from the United States ( 3729(a)), and under its qui tam provision ( 3730(b)(1)) authorizes private individuals to bring suit in the government s name to remedy such fraud. These whistleblower plaintiffs ( relators ) are permitted to share up to about 25% of the government s recovery ( 3730(d)). The Act authorizes a statutory penalty of $5,500 to $11,000 for each violation, plus treble damages for any actual damages suffered by the government ( 3729(a)). Nearly three years ago, one of Mr. Armstrong s former teammates, Floyd Landis 3, filed a FCA suit (1:10-cv RLW) against Armstrong and his associates in the District of Columbia. Mr. Landis alleged that Armstrong and his cohorts systematically engaged in doping yet induced the Postal Service into sponsoring the team under a contract that explicitly prohibited doping. As with all qui tam actions filed under the FCA, Mr. Landis complaint remained under seal awaiting the government s decision to intervene. After well over two years of deliberations, the department of justice announced on February 22, 2013 that it has elected to intervene against several of the named defendants, including Mr. Armstrong. The government s decision to intervene led to the unsealing of Mr. Landis complaint and breathed life into the suit. The FCA is most frequently used to sue in matters concerning Medicare, social security, and government contractor fraud. A typical fact pattern concerns a contractor who induces the government to enter into subpar contracts with false information, or a hospital that exaggerates the number of procedures performed, thus leading Medicare to pay excess reimbursements. In these cases, the relator is usually an insider who possesses unique information. Once the relator and/or government proves the extent of the fraud, the harm to the government, and thus damages, become readily quantifiable. Unlike a typical qui tam suit, the FCA suit against Armstrong deals with well-publicized events and parties. Armstrong s fame and fortune, from his cancer-beating story to his former engagement to singer Sheryl Crow and recent headlines regarding his doping saga, brings certain familiarity to the characters in this suit. Yet legally, this FAC suit presents a very peculiar set of facts that raises interesting and unpredictable legal questions. First, Mr. Landis may not qualify as a relator under the FCA. The FCA bars a relator from filing a qui tam suit unless he is the original source of the information underlying the allegation. Whether Mr. Landis qualifies as a relator hinges on the definition of original 3 Floyd Landis was momentarily the winner of the 2006 Tour de France; that was until a Parisian laboratory found traces of synthetic testosterone in his urine less than a month after his victory parade around the Champs Elysees. For four years, Mr. Landis vehemently denied that he doped and even solicited donations from friends and fans to fund his defense. In May 2010, Mr. Landis publicly confessed to doping himself for a large portion of his professional career and filed the qui tam FCA action against Mr. Armstrong soon after. THE FEDERAL BAR ASSOCIATION NEWSLETTER - 4

5 source. In 2012, the D.C. Circuit in United States ex. rel. Davis v. District of Columbia held that the term original source no longer requires that the relator provide the information to the government prior to any public disclosure. 679 F.3d 832, 838 (citing Rockewell Int l Corp. v. U. S., 549 U.S. 457 (2007)). Instead, [t]he relator can be an original source even if the publicly disclosed information came from someone else. Id. One of the Court s rationales for the more relaxed standard is that the relator adds value with his firsthand account of events that could substantiate mere speculations and rumors which are often all that exists in the public domain. Floyd Landis certainly has a first-hand account of Armstrong s doping. But doping alone is not enough; the fraud is in lying about doping while entering into sponsorship contracts that prohibit doping. So far, public sources do not show that Mr. Landis has personal knowledge of the contracting process at the heart of the fraud. Moreover, before Mr. Landis came forward with his complaint, other Armstrong teammates, associates, and journalists had already accused Armstrong of doping, including in a sworn statement from an arbitration hearing in The government could have acted on all of this information and filed a FCA suit against Armstrong without Mr. Landis participation. The sheer quantity of innuendo and accusations about Mr. Armstrong s doping, and the amount of time they have been known to the public, are virtually unprecedented in the context of a qui tam action. Second, and somewhat counterintuitively, Armstrong s cheating might not constitute fraud on the government. In typical fraud, the bad actor misrepresents material facts to the detriment of the victim. For example, a contractor builds a bridge with subpar material but represents to the government that he is using premium material. The government pays for a premium bridge, but gets a subpar one. By contrast, in Armstrong s case, there may have been no misrepresentation. The Postal Service paid for good publicity through its sponsorship contract of Armstrong s team, and it received a lot of good publicity in , to the total of over $100 million. The Postal Service even draped victory banners on its headquarters after each Armstrong victory. Where was the detriment? The Postal Service ended its contract with Armstrong well before Armstrong was proven to have cheated, and so the Postal Service received only good publicity. In effect, the government s expectation of contract performance aligned with Armstrong s, despite, and ironically maybe even because of, his cheating. A counterpoint to the no-fraud argument is that the contract between Armstrong and the Postal Service explicitly required that riders on Armstrong s team race clean. Therefore so long as the court considers the no-drugs clause in the contract a material term, intentional contract breach could be held as a key element of the government s fraud case. Finally, even if Armstrong concedes fraud on the government, the government may not be able to prove that it has suffered any damages. Mr. Landis would be devastated to find himself receiving little more than a small share of nominal statutory damages. In United States v. Science Applications International Corp., the D.C. Circuit held that [t]o establish damages [in a FCA case] the government must show not only that the defendant s false claims caused the government to make payments that it would have otherwise withheld, but also that the performance the government received was worth less than what it believed it had purchased. 626 F.3d 1257, 1279 (D.C. Cir. 2010). Since the government announced its decision to join the suit, the Armstrong camp has released marketing studies showing that the United States Postal service enjoyed at least a 300% return on its sponsorship investment in the cycling team. Whereas a typical fraud lowers the value of the contract, the value of this sponsorship actually increased as a result of Armstrong s cheating. The government is likely to argue that the negative fallout from the damning United States Anti-Doping Agency report in 2012 and other revelations of cheating since then has more than negated the good publicity that was generated in , but this is a highly speculative theory, and one likely to fail. The damages assessment provides yet another novel angle to this FCA case. Overall, in addition to the human and sporting drama, application of the FCA to the Armstrong doping scandal raises interesting legal issues that bear watching as the case moves forward in the coming months. When Mr. Armstrong and his accomplices entered into a sponsorship agreement with the United States Postal Service in the late 1990s, they likely considered the Postal Service to be no different than a private sector sponsor. They may not have fully anticipated all the consequences, legal or otherwise, of their actions. Newly Appointed Bankruptcy Judge Christopher B. Latham By Yosina M. Lissebeck, Esq. Solomon Ward Seidenwurm & Smith, LLP Bankruptcy Judge Christopher B. Latham was appointed on October 1, He filled a judgeship vacated by Bankruptcy Judge Peter Bowie. Judge Latham began his career as a bankruptcy attorney in 1993 with the law firm of Pillsbury Winthrop Shaw Pittman LLP. For the first few years, bankruptcy remained his main area of focus. His practice then expanded to commercial and business litigation. In 2008, Judge Latham joined the United States Attorney s Office representing the federal government, its agencies, and officers in a wide range of civil matters, including bankruptcy, eminent domain, Bivens and other tort claims, as well as in criminal bankruptcy fraud prosecution. A native of Southern California, Judge Latham received his B.A. from the University of California at Irvine in 1986, graduating Phi Beta Kappa THE FEDERAL BAR ASSOCIATION NEWSLETTER - 5 and magna cum laude. He earned a master of philosophy degree from Yale University in 1989, and a J.D. from Yale Law School in He was a member of the Yale Journal on Regulation, the Yale Law and Policy Review, and the Thomas Swan Barristers Union. Following law school, he clerked for the Honorable Earl B. Gilliam of the United States District Court for the Southern District of California. Judge Latham has two term law clerks. He plans to bring in a new clerk every year so they serve two-year overlapping terms. As described above, Judge Latham began his own career as a law clerk and believes it is an extremely valuable Judge Christopher B. Latham experience for young lawyers. Judge Latham s best advice to attorneys is to honor the three cardinal virtues of the courtroom: be punctual, prepared and polite. As a judge he will try hard to set a good example and follow these same rules.

6 Judge Gonzalo P. Curiel, Judicial Profile By Krystal L. Norris, Law Clerk to the Honorable Anthony J. Battaglia If there was ever an individual whose previous experience made them perfectly suited to join the federal bench in the Southern District of California, it was Judge Gonzalo P. Curiel. Nominated by President Obama on November 10, 2011, and confirmed on September 22, 2012, Judge Curiel joins the federal bench with over ten years of experience in private practice, seventeen years of combined experience as an Assistant United States Attorney in San Diego and Los Angeles, and six years of experience as a Superior Court judge in San Diego. But extensive experience aside, Judge Curiel joins the federal bench with a positive disposition, focused on tackling the new and complex issues that arise daily in the Southern District, one of the busiest districts, especially with regard to criminal case filings. Judge Curiel was born and raised in East Chicago and is the son of immigrant parents who came to the United States to provide their family with better opportunities and the chance at a brighter future. And that is just what Judge Curiel did. After graduating from Indiana University in 1976 and receiving his J.D. from Indiana University School of Law three years later, Judge Curiel joined the ranks as an associate at James, James & Manning in Dyer, Indiana. However, the allure of year-round California sunshine soon proved too tempting, and in 1986 Judge Curiel joined Barbosa & Vera, a law firm located in Monterey Park, California. Judge Curiel remained at Barbosa & Vera from 1986 to 1989, where he specialized in the representation of local public entities. In 1989, Judge Curiel entered the San Diego legal community for the first time. However, instead of pursuing civil law practice, Judge Curiel expanded into the criminal law arena by becoming an Assistant United States Attorney ( AUSA ). Judge Curiel served as an AUSA in the San Diego office from 1989 to 2002, wherein he served as the Deputy Chief of the Narcotics Enforcement Section from 1996 to 1997 and 1998 to 1999, an attorney detailed to the Office of International Affairs from 1997 to 1998, and the Chief of the Narcotics Enforcement Section from 1999 to As a criminal prosecutor in the San Diego office, Judge Curiel worked in conjunction with other AUSAs to prosecute many prominent and high-profile cases. For example, along with his co-counsel, then AUSA Judge Gallo, Judge Curiel successfully convicted ten defendants in a trial lasting several weeks before Judge Marilyn L. Huff. This conviction resulted from the seizure of nearly twelve tons of cocaine on the high seas near the Galapagos Islands. Additionally, in collaboration with another AUSA, Judge Curiel successfully prosecuted two corrupt drug inspectors at the San Diego-Mexico border, who had each accepted drugs in return for allowing unauthorized access to the United States. The convictions were the result of two separate trials before Judge Irma E. Gonzalez. These convictions are only a few examples of the multitude of cases Judge Curiel successfully prosecuted while at the San Diego office. In 2002, Judge Curiel continued his tenure as an Assistant United States Attorney, but this time in the Los Angeles office. Judge Curiel remained in the Los Angeles office until 2006, during which time he focused on investigating and prosecuting a wide range of criminal cases, specifically cases involving drug and money laundering. During the twenty-seven years Judge Curiel served as a civil litigator and as a federal prosecutor, he tried over thirty cases, the majority of which were federal criminal trials wherein he served as the sole lead counsel. In an era where many cases settle before trial, and considering the legal and factual complexity of the cases Judge Curiel pursued during this time, the number of cases he prosecuted to verdict is astounding. In 2006, Judge Curiel was appointed to the San Diego Superior Court by then governor Arnold Schwarzenegger, where he sat as a state trial court judge of general jurisdiction. Judge Curiel served in this capacity from 2006 to 2012, wherein he presided over various matters, including: domestic violence, family law, civil trial practice, and the general civil calendar. During the two years he presided over civil trials, Judge Curiel managed a civil docket of over six-hundred cases, adjudicating District Judge Gonzalo P. Curiel both discovery-related and dispositive motions. Although the issues Judge Curiel faced as a state court judge vary significantly from those faced by a federal district court judge, especially with respect to criminal matters, the sheer magnitude of his case load while serving as a superior court judge has been instrumental in preparing him for his current judgeship. Moreover, because many of the cases that make it to federal court are based on diversity jurisdiction, the California Class Action Fairness Act ( CAFA ), and/or supplemental jurisdiction, they often require a determination of prominently state law issues. Thus, Judge Curiel s experience during his tenure as a superior court judge, specifically his experience presiding over at least sixteen civil trials, eleven of which were jury trials, has helped him feel right at home on the federal bench. Continued on Page 8 THE FEDERAL BAR ASSOCIATION NEWSLETTER - 6

7 Disclosure and Discovery: an Explanation of Written Discovery in Federal Court By Rebecca Church, Esq. Duane Morris LLP On March 13, 2013, the Honorable Magistrate Judge Ruben B. Brooks, Allison Goddard of the Patterson Law Group, and Randy Kay of Jones Day delivered Session Two of the Federal Bar Association s Disclosure and Discovery Series to a full house. This installment addressed the federal rules regarding interrogatories, requests for production, requests for admission, and subpoenas duces tecum. The popularity of the event may be attributable to quality of the speakers and also to the universal appeal of the subject matter. Judge Brooks kicked off the event by setting the stage for written discovery. He explained that by the case management conference, the parties know the key issues in the case and should be talking to each other about the kind of documents at issue in the case, any electronically stored information, and potential problems with gathering or producing discovery. Judge Brooks also suggested that the parties should work together to prepare a protective order to be submitted to the court for approval to avoid later problems with production. Allison Goddard offered the plaintiff s perspective noting that she often drafts her written discovery along with the Complaint. This parallel process allows her to capture the information she believes is most necessary to her case. She explained that the plaintiff often has to draft broad discovery requests because the custodians of documents or location of documents are complete unknowns. However, she noted that when broad requests are served, it is helpful to call one s opposing counsel to explain that you are willing to discuss any requests that opposing counsel considers to be burdensome in an effort to narrow down the issues. Randy Kay added the defense perspective by explaining that discovery should be drafted with the elements of the claims in mind and an eye towards the motion for summary judgment. The defense must also start early to prepare the client for the discovery process by explaining the claims and defenses as well as identifying documents and witnesses. Randy offered some suggestions regarding responding to broad discovery requests, beginning with early communication to the client. Next, seek an extension from opposing counsel and consider negotiating with opposing counsel to make rolling productions. Notably, a rolling production does not consist of doing nothing for months and turning to the discovery when you have time. Rather, it should consist of diligent work and production of documents as they are made available. Counsel also made the general suggestion that it s a good idea to question one s own client regarding the information he or she provides. The client will be questioned about their discovery responses on any critical issue by opposing counsel later in the case, and the best way to ensure loose-ends are tied up is to proactively confront the issues. When responding to discovery requests, Judge Brooks reminded the audience that there is an automatic sanction built into the discovery rules. If a party does not produce discovery in its initial disclosures or in response to a request, then the party is precluded from using it in trial. Judge Brooks explained that there is rarely a good excuse for the non-disclosure. With regard to discovery motions, each magistrate judge has different procedures for raising the discovery issue with the court. Parties should check chambers rules to ensure they meet the applicable requirements and deadlines. Judge Brooks was asked his opinion regarding whether it is better to file a motion for protective order or respond to a motion to compel. From the court s perspective, there is not much difference. The court prefers the method which conveys the issues most effectively. There is no tactical advantage for being the first to file a discovery motion. Prior to filing any motion, the parties must meet and confer. If the attorneys are from the same county, counsel must meet and confer in person. Telephonic meet and confers are acceptable only where the attorneys are greater distances apart. Failure to adequately meet and confer may result in denial of the motion. Although written correspondence, by itself, is not enough to satisfy the meet and confer requirement, it may be used to supplement the in person meeting. However, counsel should be careful in writing letters. First, it s never a good idea to write a scathing letter that is intended primarily to impress one s client. Second, it s not good practice to write multiple letters with the intention of overwhelming opposing counsel. Ultimately, meet and confer letters may be included as exhibits to the discovery motion. Therefore, they should be written in a professional manner that reflects favorably on the writer. Judge Brooks offered some tips regarding things to avoid in discovery motions, such as an unspecific overbroad and unduly burdensome objection. The party should clarify why the discovery is burdensome by providing facts, such as the number of custodians that must be searched to find the information. In addition, if a party believes that a technical expert is necessary to explain discovery issues, Judge Brooks expressed a preference for a short and informative declaration from a technical expert. Bringing a witness to the discovery hearing is not preferred. Finally, Judge Brooks noted that a party repeatedly seeking sanctions loses credibility with the court. The panel also pointed out that there are some excellent resources available to counsel in this district including the Disclosure and Discovery Manual authored by District Judge Anthony J. Battaglia which was generously sent to all attendees of Session Two of the Federal Bar Association s Disclosure and Discovery Series. In addition, the Southern District s Patent Panel recently prepared a model order on electronically stored information which can be applied to any civil case upon request by the parties. The model order is available at the Southern District Court s website and referenced in Local Rule 2.6. THE FEDERAL BAR ASSOCIATION NEWSLETTER - 7

8 Getting Your Case Started (continued from page 2) both sides can develop a productive means for identifying and obtaining ESI through methods such as predictive sampling. When it comes to protective orders, Mr. Forge believes that protective orders are often overly inclusive. However, he recognizes the practicalities of litigation. As he stated, if it is a question of obtaining the documents today, or waiting several months, he would prefer to have the documents today. Ms. Balfour noted that the USDC website has a splendid sample protective order that can be used as a starting point. Bifurcated Discovery The panelists discussed bifurcated and phased discovery. Judge Stormes explained that there is an important distinction between focused discovery and bifurcated discovery. Judge Stormes, in appropriate cases, will order the parties to focus their discovery on specific issues that the parties have acknowledged are important to the chance for an early resolution of the litigation. In these instances, she may order the parties to return and participate in a mandatory settlement conference after the focused discovery is completed. In most circumstances, the parties are still allowed to conduct the broad scope of discovery allowed by the rules. Mr. Forge explained that he is not a fan of bifurcated discovery. He does not think that issues can be split into clear and distinct parts; there is usually too much overlap. Ms. Balfour, on the other hand, noted that bifurcated discovery has the benefit of efficiency and cost savings in appropriate cases. Rule 26(f) Conference Participants Ms. Balfour s preference is to have as many members of her team participate in the Rule 26(f) conference as is possible. In advance of the conference, she will often prepare a draft Rule 26(f) report. She has found that by doing so, she improves her focus on key issues in the case, which results in the development of an effective plan. Mr. Forge discussed the importance of having the decision maker(s) directly participate in the conference. Without the involvement of the decision maker(s), the parties are unable to reach agreements that are necessary for the conference to be productive. Judge Stormes emphasized that the parties will be held accountable for what is in the Rule 26(f) report. Her expectation is that the parties will follow the agreements that are contained in the report. Judge Gonzalo P. Curiel, Judicial Profile (continued from page 6) Considering all that Judge Curiel has accomplished, one might assume he had a mentor, such as a respected jurist or even a prior law school professor, who served to guide or inspire him to pursue his professional aspirations. In response to this question, however, Judge Curiel is quick to respond that his mentor is, and has always been, his older brother. Growing up in a small town, there were not many professional role models, much less role models in the legal community, to look to for guidance and support. Judge Curiel saw his older brother as a pathfinder, in that he was the first to attend college, graduate from law school, and eventually join the ranks as an Assistant United States Attorney. Significantly, Judge Curiel s brother taught him to aim high and not allow roadblocks to prevent him from accomplishing his goals. This continues to be Judge Curiel s mantra and the driving force behind his involvement and participation in the Legal Enrichment and Decision Making ( LEAD ) program. LEAD is a program sponsored by the Los Angeles District Attorneys Office, which aims at teaching fifth-grade students how to think about the society around them, including their place within that society, and how laws, customs, and traditions shape how society functions. To accomplish this goal, LEAD sponsors a ten-week course, wherein the students are partnered with volunteer attorneys, who provide the students with advice and guidance as to how to make the most of the opportunities this country has to offer. Although the LEAD program culminates in a mock trial and focuses primarily on the criminal justice system, the program also teaches students the importance of education and provides positive role models to many of the participants who do not otherwise have one. This is one of the primary reasons Judge Curiel was initially drawn to the LEAD program. When asked what one piece of advice Judge Curiel would give to attorneys appearing before him, he was quick to preface the following as crucial for all attorneys in all areas of practice meet and confer with opposing counsel and only bring real issues before the court. According to Judge Curiel, attorneys all too often lose sight of their primary objective to represent their clients effectively and ethically. Therefore, and with crucial import to the close-knit San Diego legal community, Judge Curiel counsels attorneys to engage in professional, cordial, and collaborative communication with opposing counsel. Thus, although there will necessarily be crucial big ticket items that counsel will not be able to agree on, it is counsel responsibility to distill the actual issues from the non-issues before involving the court. Judge Curiel also noted that this advice is especially relevant to young attorneys, because an attorney s reputation in the community is everything. In his opinion, there will never be a case that is worth sacrificing your integrity or your good name over. Although Judge Curiel was only recently sworn in on October 3, 2012, he is quickly finding his way around the federal courthouse, and has already relocated his chambers following his September 2012 confirmation. With the help of his staff, Judge Curiel is quickly getting his sea legs by tackling the multitude of civil cases that were immediately transferred to his civil docket after he was confirmed, some of which have a complex procedural posture. It is Judge Curiel s positive disposition and determination to handle all matters judicially and expeditiously that serve as a valiant reminder as to why Judge Curiel was able to accomplish everything that led to his eventual nomination and confirmation to the federal bench. Welcome to the federal bench Judge Curiel; you are an inspiration to both young individuals considering a future legal career and seasoned attorneys. THE FEDERAL BAR ASSOCIATION NEWSLETTER - 8

9 Brown Bag Luncheon with Judge Marilyn L. Huff (continued from page 3) if good cause is shown, Judge Huff will typically allow the parties to identify additional patent claim terms. Nevertheless, lawyers should narrow down the issues in claim construction hearings. Judge Huff does not typically offer a tentative ruling, except when the tentative ruling could potentially minimize a complex claim construction dispute. Scheduling Order Judge Huff rarely communicates with the magistrate judges, but she respects their decisions and encourages attorneys to comply with the scheduling order. During the Early Neutral Case Evaluation, the magistrate judge is encouraged to set the trial date, because, as Judge Huff noted, a scheduled trial date may position the case for early resolution by settlement. Unless good cause is shown, the trial date may not be changed. However, pretrial conferences may be determined on a week-by-week basis to impose reasonable time limits. Voir Dire In civil cases, Judge Huff allows attorneys to provide jury questionnaires to potential jurors to fill out prior to voir dire. The goal of the questionnaires is to expedite the jury selection. In criminal cases, Judge Huff uses the Arizona Blind Strike method for jury selection. Under that system, the venire members are individually numbered. After venire members are excused for cause, each side may provide up to three peremptory challenges each without knowing which individuals the other side is challenging. Judge Huff then removes the members of the peremptory challenges and selects the twelve lowest numbered venire members as the jury. The decision during voir dire must be unanimous. Trial When asked for advice regarding trials, Judge Huff reflected on common mistakes, explaining that impeachment on collateral matters falls flat. She advised attorneys to start and end each day strong. The middle of the afternoon is the best time to schedule a difficult or uncooperative witness. On the other hand, critical evidence should be introduced in the morning when the jury is most attentive. Judge Huff does not allow speaking objections; she believes it is improper to raise them in front of the jury and side bar during trial tends to waste both the court and the jury s time. She encourages attorneys to discuss their objections at recess, at lunch, or at the end of the day. Judge Huff considers herself to be Ms. Efficient and stresses that attorneys should try to be efficient as well by focusing only on what is necessary at trial. If more time is warranted, however, she will likely extend the allotted time for a civil trial. New Technology Asked about the effectiveness of the new technology in her courtroom, Judge Huff remarked that she enjoys the new system as well as the natural light. However, she noted that since moving into the new courthouse, there have been three glitches with the jurors monitors. Additionally, because no projector is available, attorneys are advised to bring their own projector if one is needed at trial. Judge Huff encourages lawyers to come to her courtroom in advance of trial to test out the new system and to have a back-up plan in place. General Advice Although Judge Huff follows the uniform rules for matters pending before the court, she still has her ways of doing things. Judge Huff recommends that attorneys, both new and experienced, come to her courtroom on Mondays to observe and learn how to conduct motion hearings. Judge Huff expects professionalism in her courtroom. It is rarely effective to yell at opposing counsel, even in briefings. Civil discovery disputes can be a source of great frustration for the parties as well as for many judges. Judge Huff stated that if she could redesign the system, district court judges would be involved in discovery process. She recommends that lawyers step back and think through the actual disagreement before going to the court. Background Judge Huff was appointed as a federal district judge for the Southern District of California in 1991, and served as Chief Judge from 1998 to Prior to joining the bench, Judge Huff was a partner with a law firm in San Diego, specializing in media law and civil litigation. Judge Huff serves on the Judicial Conference of the United States Committee on Rules of Practice and Procedure and the Ninth Circuit Education Committee. She is also a participant in the Patent Pilot Project, which was designed to reduce the backlog of intellectual property cases and to increase the expertise of participating judges in patent law. THE FEDERAL BAR ASSOCIATION NEWSLETTER - 9

10 Upcoming Federal Bar Association San Diego Chapter Events Recent Key Ethics Cases And Why I Should Care, June 6, noon 1:15 p.m., San Diego County Public Law Library Introduction to Federal Courts, July 11, time & location TBD Supreme Court Review with Dean Erwin Chemerinsky, July; specific date, time, and location TBD Ninth Annual Judith N. Keep Federal Civil Practice Seminar, September 12, 1 p.m. 5 p.m., Westin Gaslamp Quarter State of the District Luncheon, October 30, noon 1:30 p.m., Westin Gaslamp Quarter Holiday Law Clerk Reception, December, Athens Market Taverna, 109 W F St., specific date and time TBD Please be sure to check our website at for the latest information on upcoming chapter events. Federal Bar Association San Diego Chapter 2013 Executive Committee President Hubert Kim Wilson Turner Kosmo LLP 550 West C Street, Suite 1050 (619) Treasurer Colleen Smith Latham & Watkins LLP 600 West Broadway, Suite 1800 (619) Events Coordinator Craig Countryman Fish & Richardson El Camino Real San Diego, CA (858) Newsletter Editor Olga May Fish & Richardson El Camino Real San Diego, CA (858) Bankruptcy Liaison Yosina Lissebeck Solomon Ward Seidenwurm & Smith 401 B Street, Suite 1200 (619) President-Elect Gary LaFleur 8165 Dicenza Lane San Diego, CA (619) Vice President Joe Leventhal The Leventhal Law Firm 600 West Broadway, Suite 700 (619) Secretary Frank Polek Polek Law 701 B Street, Suite 1110 (619) Membership Chair Ben Wagner Mintz Levin et al. PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA (858) Immediate Past President Katherine (Katie) Parker U.S. Attorney s Office 880 Front Street, Room 6293 (619) Events Coordinator Megan Chung Kilpatrick Townsend High Bluff Drive, Suite 400 San Diego, CA (858) Events Coordinator Brian Byun Cooley LLP 4401 Eastgate Mall San Diego, California (858) Newsletter Editor Carolina Bravo-Karimi Wilson Turner Kosmo LLP 550 W C Street, Suite 1050 (619) cbravo-karimi wilsonturnerkosmo.com Newsletter Editor Nicole Cunningham Goodwin Proctor LLP 4365 Executive Drive, 3rd Floor San Diego, CA (858) Publicity Chair Amanda Fitzsimmons DLA Piper LLP 401 B Street, Suite (619) Technology Coordinator Vanessa Morrison, Esq. State of California Department of Transportation M/S Taylor Street San Diego, CA (619) U.S. Attorney Liason Anne Perry U.S. Attorney s Office 880 Front Street, Room 6293 (619) Immigration Liaison David Schlesinger Jacobs Schlesinger & Sheppard LLP Spreckels Theatre Bldg. 121 Broadway, Suite 573 (619) Federal Defender Liaison Ryan Stitt Federal Defenders of San Diego Inc. 225 Broadway, Suite 900 (619) YLD Chair / Coordinator Shireen Becker U.S. Attorney s Office 880 Front Street, Room 6293 (619) THE FEDERAL BAR ASSOCIATION NEWSLETTER - 10

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