Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
Pre-hearing preparation Stipulations—in general
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Pre-hearing preparationStipulations—in generalCOMMENT: This provision is modeled on Fed. R. Civ. P. 36(b) and MCL 11.471. The MCL observes that: Attorneys are sometimes reluctant to make any concessions on behalf of their clients. In such cases, the judge may be able to persuade counsel that, in addition to fulfilling their responsibilities as officers of the court, they will serve their clients’ interests by streamlining the litigation through appropriate concessions and admissions. The refusal by counsel to stipulate to provable facts almost never results in an advantage through a failure of proof and usually imposes additional costs on both sides in discovery, at trial, or both. MCL 11.473 at 96-97 (emphasis added). The parties are strongly encouraged to stipulate to as many points of fact and law as possible; for purposes of this arbitration, to “stipulate” means that, for purposes of this arbitration only, the stipulating party will not dispute, contest, or require proof of the stipulated matter. A stipulation may be phrased in terms such as “Stipulated,” “Not contested,” “Not disputed,” “Uncontested,” “Undisputed,” and the like, all with the same effect. A stipulation is binding on the stipulating party, except that the arbitrator, on motion, may permit withdrawal or amendment of a stipulation if (1) the withdrawal or amendment would promote the presentation of the merits of the dispute being arbitrated; and (2) the arbitrator is not persuaded that the withdrawal or amendment would prejudice another party in maintaining or defending the dispute on the merits. COMMENT: This language is modeled on Fed. R. Civ. P. 36(b); its use is suggested in MCL 11.471, which states that “[counsel] may be willing to enter early stipulations if there is provision analogous to that in Federal Rule of Civil Procedure 36(b) for timely withdrawal from an incorrect stipulation on the basis of newly discovered evidence when no substantial prejudice to other parties would result.” A party’s stipulation of the truth of an uncontroverted fact does not affect the party’s right to contest the relevance, admissibility, or probative value of the fact. COMMENT: This subdivision is adapted from MCL 11.471, which suggests that “[t]he court can assist the stipulation process by stressing the distinction between conceding the truth of some fact or agreeing not to contest it, and conceding its admissibility or weight…. Indeed, if a party contends that some fact is irrelevant or otherwise inadmissible, there is more reason to admit to its truth without the exhaustive investigation and discovery that might be warranted for an obviously critical fact.” A stipulation is subject to any limitation stated in it. Case-management calls—Weeks 6 and 9, Tuesday, 11:00 a.m.Case-management conference calls will be convened at the dates and times (in the Reference Time Zone) specified in the heading of this section 4.2, or as otherwise directed by the arbitrator in consultation with the parties. COMMENT: The specific dates and times are flexible, of course; the 11:00 a.m. time was selected as a placeholder because it works reasonably well throughout the U.S. no matter what time zone is used as the Reference Time Zone. As appropriate, the agenda for each case-management conference call will include, for example, (1) remaining areas of disagreement; (2) discovery needs; (3) possible dispositive motions; and (4) any checklist items stated in the Arbitration Rules. The arbitrator has discretion to proceed with a scheduled- or duly-noticed call even if a particular party’s counsel are not on the call (in such a case, however, the arbitrator’s preference is normally to reschedule the call to ensure each party has an opportunity to be heard on all matters discussed or decided). The arbitrator may direct that one or more in-house counsel and/or “business people” of each party participate in particular calls as well. COMMENT: This provision anticipates that the parties might be less resistant to cost-reducing stipulations if clients, not just counsel, attend particular conference calls. See MCL 11.471, which suggests: “Since an angry client, rather than the attorney, is often the person responsible for an ‘admit nothing’ posture in the litigation, consider directing the clients themselves to attend a conference at which the desirability of early stipulations is discussed.” The arbitrator can consider recessing the conference call to permit counsel and their clients to confer separately, then resume the conference call to explore possible areas of agreement. Document production may be requested during: Weeks 1 through 4Introduction: During the time period specified in the heading of this section 4.3, either by agreement or with the arbitrator’s prior approval in each instance, any party may request production of specific documents, or of narrowly-focused categories of documents, that are in the possession, custody, or control of another party. COMMENT: AAA Commercial Rule R‑22(b)(ii) and (iv) and AAA Employment Rule 9 give the arbitrator the authority to direct the production of documents. Under those rules, though—unlike most U.S. litigation rules—parties are not automatically entitled to document discovery. Criteria for arbitrator approval: Absent agreement of the parties, the arbitrator expects to approve only narrowly-targeted requests for production of relevant documents that can be readily complied with without undue expense, burden, or inconvenience on the part of the producing party. COMMENT: The parties’ in-house representatives should normally be consulted about an expensive or burdensome document production, even if outside counsel agree to it. Redfern Schedule: Counsel proposing document requests for arbitrator approval are to use the so-called “Redfern Schedule” format, in which requests for documents are listed in a table, where column A is the text of the request; column B is the requesting party’s justification, if any; column C sets forth the requested party’s objections, if any; and column D is the arbitrator’s decision on that request. COMMENT: The Redfern Schedule format is named for its originator, British arbitrator Alan Redfern. See generally, e.g., Michael A. Roche, Document Production Basics for International Arbitration, in American Bar Association Young Lawyer Division, The Young Lawyer, Feb. 2012, at http://goo.gl/Lb8zrS (AmericanBar.org 2012) (accessed Dec. 11, 2014). Request numbering: To make it easier to find requests for production of documents in case indexes, each party is to number its requests in a respective single sequence, i.e., without repeating the numbers used on any prior set of requests propounded by that party, regardless of the party or parties upon whom the same were served. The title of each set of requests is to include the range of numbers thereof and a parenthetical indicating the party to which the requests are propounded. EXAMPLE: “ABC’s Requests for Production of Documents No. 5-8 (to XYZ)." Deadlines: Counsel are strongly encouraged to agree on deadlines for production of documents pursuant to an approved request; absent agreement, production is due two business days after the arbitrator’s approval of the request unless the arbitrator, for good cause, directs otherwise. Certain objections not waived: A party’s production of particular documents in response to an agreed- or approved request will not in itself waive (1) any timely-made objection to admissibility of those documents, nor (2) any timely-made objection to production of other documents that might be responsive to the same request. Privilege logs, if any, are to be served on the requesting party at the same time as production is due unless otherwise agreed or directed by the arbitrator. Production mechanics: Production of documents is to be by email unless impracticable (e.g., because of PDF size); where practicable, service of large documents should be by electronic means (e.g., Dropbox). Parties are reminded that email is not necessarily secure. True copies required: All documents produced must be complete and accurate copies of the originals; the arbitrator may direct that any original document be presented for inspection. Electronic documents: Counsel are strongly encouraged to agree on the form of and procedure for production of electronic documents (including search terms where applicable). The arbitrator will decide any disagreements in that regard on a case-by-case basis. Directory: docs docs -> Application for acem docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. What is a Register Of Merit docs -> Protecting the rights of the child in the context of migration docs -> United Nations E/C. 12/Esp/5 docs -> 9th May 1950 the schuman declaration docs -> Getting To Outcomes® in Services for Homeless Veterans 10 Steps for Achieving Accountability Download 260.83 Kb. Share with your friends:
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