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unidentified
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You've been watching live coverage. | |
| We return now to our scheduled program. | ||
| We join it in progress. | ||
| Personally, and I manage discovery in all litigation before me, but including the complex cases like antitrust. | ||
| There is an advantage of having the trial judge handle it, but it's not the only good way, and many dockets don't permit that. | ||
| But if the trial judge can manage the discovery disputes, I think it does have potential advantages of cutting down on the number of disputes and ensuring that the trial judge has control over the speed of resolution of those disputes. | ||
| For me personally, handling the discovery dispute has the advantage that I learn early on where the parties are focused, what is most important to them, and how they are functioning together or not. | ||
| And that has advantages for me as I manage the entire litigation. | ||
| Chief Judge Bosberg, what are your thoughts on discovery? | ||
| Thank you also. | ||
| I'm very happy to be here where we're talking just about antitrust. | ||
| I thought that Judge Coate made some excellent points with which I completely agree. | ||
| So I'll amplify my views on some of this, which I think are very consistent with hers. | ||
| As we all know, that antitrust discovery periods are going to be longer. | ||
| They're going to be more complex. | ||
| So what is the most critical facet for me? | ||
| And that's progress and momentum. | ||
| Getting bogged down in discovery does no one any good. | ||
| It certainly doesn't do the judge good. | ||
| It doesn't do the parties any good. | ||
| So the question is how do we keep pushing the case along? | ||
| How do we continue to have momentum? | ||
| And so I think in many of the cases, the parties just want answers. | ||
| They may not necessarily agree with what the discovery ruling is, but they just want rulings so they can keep going. | ||
| So the longer you hold on to things and wring your hands, the less satisfied they are going to be. | ||
| Even if you're going to rule against them, they just want a ruling. | ||
| So I also don't refer discovery disputes to magistrate judges for the reasons Judge Coates says I handle them myself. | ||
| And I guess if there were a massive electronic discovery, but I'm not even sure then. | ||
| I've never in my career referred any discovery matter to a magistrate judge. | ||
| I've always handled them. | ||
| So I also, like Judge Coate, don't permit lawyers to file motions, motions to compel or motions for protective order, without talking to me first. | ||
| So what I typically do is I will require joint status reports from the parties every, say, 60 days during discovery. | ||
| And those joint status reports will lay out all of the how far discovery has been achieved, what's been accomplished so far, and they will identify specific areas of dispute with each party's position, again, in one document. | ||
| And then I will either have a hearing, a brief hearing, if I want to hear a little bit more about a particular dispute, or I will just rule. | ||
| And I also will not write lengthy opinions. | ||
| And in our court, we write a lot on a lot of motions, but I keep my opinions on discovery disputes very short because, again, it enables me to get the opinion out more quickly, and that's what the parties want, is the answer. | ||
| So If I really feel like I need more briefing, again, as Judge Coates said, I will have briefs with very strict page limits, like three pages, five pages, and then rule. | ||
| They may just be orders with the bottom line, maybe a paragraph of reasoning on each, but the key is to get the answers to the parties. | ||
| Now, again, this requires cooperation and conferring between or among the parties, and that's a good thing. | ||
| And if you will quickly sense in these status reports or in hearings if one party is being particularly difficult, because they're the one always taking an unreasonable position. | ||
| So parties, I think, will make efforts to act more reasonably if you're going to hold them to account if they have to continue to give their position in joint statements where they're just going to look silly if their position isn't reasonable. | ||
| So, again, a tight rein on discovery, continued status reports, continued rulings, and whatever you can do to preserve momentum. | ||
| Thank you. | ||
| Chief Judge Boesberg or Judge Gonzalez, Rogers, any thoughts on managing discovery? | ||
| Well, we do it differently in the Northern District of California. | ||
| I think most of us refer to magistrate judges, but I agree with my colleagues. | ||
| If my docket allowed it, and I early on, just to get to know the bar, I did keep discovery. | ||
| I think it can be faster. | ||
| And our magistrate judges deal with discovery, I think, in the same way that my colleagues here on the panel deal with it: short letter briefs meet and confer. | ||
| So there are two other things, though, that I'd like to mention that haven't been discussed, and that is over-sealing of documents and claims of attorney-client privilege. | ||
| I think the bar uses both of those issues to an extreme. | ||
| Especially if you're in the Ninth Circuit, putting someone who's a lawyer's name on a document does not create a privilege. | ||
| And the notion that it would is, at least in the Ninth Circuit, creates all sorts of problems with respect to discovery. | ||
| So, if you don't know what the circuit law is, figure it out where your clients are. | ||
| And just know that we aren't going to tolerate you hiding documents under a guise of attorney-client privilege when there is none. | ||
| Second, over-sealing. | ||
| You all want to seal everything. | ||
| And I have to tell you, from our perspective, you know, when we have to go through those sealing requests and make individual determinations, it is incredibly taxing on chambers. | ||
| So, I now have a standing order that's approximately, I think, two pages long in terms of what you have to deal with your sealing requests, because I'm not going to do it anymore. | ||
| You're going to do the work for us. | ||
| So, again, when you are trying to seal things, it really is a question about what specific statement in your clients' documents relates to business or proprietary information. | ||
| It is not the whole thing, or frequently not the whole thing. | ||
| So, in these big cases, thinking about issues of sealing before you get to trial is really important. | ||
| And talking to the judge in advance, having protocols to deal with this will help. | ||
| But we don't have, just remember, we don't have big staffs. | ||
| Most of us have two or three law clerks, and we have hundreds of cases. | ||
| So help us out and be narrow in your requests and understand that we are a public institution, and that means transparency is important for the public and for our resolution of these cases. | ||
| We are not going to seal everything just because you don't want it out there. | ||
| Chief Judge Proctor, anything for you? | ||
| I totally agree with Judge Gonzalez-Rogers about sealing and privilege issues. | ||
| Those tend to be among the things that lead to us losing momentum, as Chief Judge Boseberg was addressing. | ||
| I think that I had a case in which I required a privilege log and there were a million entries on the log. | ||
| Think about that for a second. | ||
| And I would tell you that I sit on the Advisory Committee on Civil Rules. | ||
| We just had our meeting in Atlanta yesterday. | ||
| I got to spend a lot of time with Delta Airlines last night getting here from Atlanta. | ||
| And one of the things we are taking up is should we address the rules as it relates to sealing of documents. | ||
| I think it is a pretty widespread view among the judiciary that we have to address that because that's been an abuse that we need some tools to deal with. | ||
| The question might be whether we need a national standard or let local courts deal with that, but it still needs a problem that has to be addressed. | ||
| The other thing I would say is, just backing up, I also, when I sat on the Civil Rules Committee, I chaired the MDL Rules Subcommittee, and we have a draft Rule 16.1 that I think is pending at the Supreme Court now and is due to go to Congress. | ||
| It deals with pretrial litigation and multidistrict litigation. | ||
| And I think a lot of the lessons we learned for complex and multidistrict litigation there apply well to antitrust litigation. | ||
| And that is having a good plan at the start, having a lot of meet and confers early, a lot of conferences with the lawyers to make sure we are off to a good start. | ||
| If you are not off to a good start, chances are you are not going to finish well. | ||
| And discovery is a key component of that. | ||
| And so that's one of the things. | ||
| If you are stuck on a plan for your antitrust case, the notes to 16.1 say that it can be used for other non-MDL litigation that's complex, and it's got a series of things that judges can ask the parties to report on for an initial management conference and a lot of things the parties can devote attention to in their version of the kind of a Rule 26 report for MDLs, | ||
| but the same thing applies to your Rule 26 report for non-MDL litigation like antitrust litigation. | ||
| Great. | ||
| Thank you. | ||
| Let's now turn to experts. | ||
| And Judge Gonzalez-Rogers accurately said sometimes the experts are the most important part of an antitrust case, and they have to explain extremely complicated things like regression analyses to a number of different constituencies. | ||
| So Chief Judge Brockter, why don't you start us off on a discussion of how to utilize experts? | ||
| So there's two types of smart people. | ||
| And believe me, I've learned that economic experts in antitrust litigation are smart people. | ||
| The first type is, let's take a very straightforward issue and make it sound very complex so that we impress everyone with how smart we are. | ||
| The more useful smart person is someone who takes a very complex issue, breaks it down to its ordinary components to assist and serve others in understanding the area. | ||
| So that's the first question you need to ask: what type of economic expert am I hiring? | ||
| Which category of smart people does this person fit into? | ||
| I asked my law clerk, my career law clerk, so give me some tips on what you would tell lawyers about how to deal with expert witnesses, and it's what you would expect. | ||
| Let me ask you this: how many of you have had a case, let's show hands, where it was predominantly the only case you worked on for a period, for a season of your career? | ||
| All right. | ||
| I bet if I asked the judges up here if they've had one antitrust case that they only worked on for a season of their career, no hands would go up. | ||
| And that ought to tell you something: you have to understand that we have a docket. | ||
| I mean, we are going to leave your hearing on your expert questions and go take a guilty plea or go handle a summary judgment and employment case or a diversity case or some other function of judicial business. | ||
| And I think you've got to realize how important it is for you to top line things for us, to bottomline things for us, to break it down and to make it explanatory. | ||
| I was going to play a clip, and we decided not to play it, but it's the surplus episode on the office where Oscar is trying to explain to Michael about the surplus they have in the budget, and Michael doesn't quite understand what a surplus is. | ||
| And he tells Oscar to explain it to him like he's eight years old. | ||
| And Oscar does that. | ||
| Michael still doesn't get it, so he says, explain it to me like I'm five years old. | ||
| Oscar goes into a hypothetical about a lemonade stand and how much money your parents give you to run the lemonade stand. | ||
| The point is, I think that's a good exercise to remind yourselves that you're going to deal with folks who, like John Tiger, who has an economics background, I think an economics major, but you're also going to be dealing with judges who don't have that. | ||
| And so how do you approach expert testimony and presentations with that in mind? | ||
| Are there examples that any of you can share without identification of situations where you've seen experts do really well or do really poorly? | ||
| Well, again, since we don't have to identify anyone, I feel absolutely free to speak. | ||
| I would say in choosing an expert, it's important to think about not only their credentials and knowledge of the field, but also how articulate they will be if giving testimony to a judge or to a jury, depending whether it's going to be a jury trial or a bench trial. | ||
| But probably most important in the choice is will they do the work? | ||
| Will they study the documents? | ||
| Will they crunch the numbers? | ||
| or if they have a team behind them, will they understand in detail how those numbers were crunched? | ||
| Will they, in a situation in which they're asking for their expertise to go beyond what is normally accepted in the field, | ||
| will they have such an intimate knowledge of the evidentiary record that pertains to their opinion that they can defend that on cross-examination effectively or explain it effectively in their written report. | ||
| So my example is someone who was a Nobel laureate and very impressive and very articulate, but someone who had not put in the hours to actually be well versed in the issues in the case about what they were testifying about. | ||
| And I just echo what Judge Proctor said, which is particularly in a bench trial, you really have to do your research on your judge. | ||
| In other words, if you're trying a case in front of a judge like Judge Ginsburg, you could have, if you tried cases, of course, that you could have experts talking at a very high level and may be someone who isn't brilliant at explaining but who's very sophisticated in their background and knowledge. | ||
| But you have to also look, they're judges, it's not just the judges of other cases on their docket, but there are lots of judges who may have come from a purely criminal background. | ||
| They've never handled an antitrust case in their lives. | ||
| And here's the first one. | ||
| So you better have that lemonade stand expert ready because otherwise you're just going to lose the judge. | ||
| So it's not just, look, not just at the person's background, but you can find out how many antitrust cases have they had. | ||
| And to me, this is sort of 101 before you're getting ready for that case because you really need to know the judge. | ||
| And if I can pivot, Daubert motions are not a way to educate the judge. | ||
| I can't tell you how often I've heard that. | ||
| Well, Judge, we're just trying to educate you. | ||
| Look, there are better ways to do it. | ||
| Again, Daubert motions are overused. | ||
| And many of us, I think there are parallels from antitrust law also to patent law. | ||
| So many of us also do patent law. | ||
| I was at a conference with judges who do a lot of patent law. | ||
| And we were talking about the overuse of Daubert motions. | ||
| So just a headline. | ||
| Just because you don't like the opinion does not mean you have a good Daubert motion. | ||
| Okay? | ||
| That's not the standard. | ||
| The question is, are they qualified to render the opinion that they are giving? | ||
| And that's what we're looking at. | ||
| There are judges now who say, file as many Dauberts as you want, but order them in the strongest to the weakest. | ||
| Once I deny it, they're all denied. | ||
| I now limit, in any case, you get three. | ||
| That's all you have. | ||
| That's all you get. | ||
| And again, you know, maybe there's one good motion where, back to Judge Coates' opinion, you have a Nobel laureate, but that Nobel laureate's not actually opining on a topic for which they are qualified to talk about, or the evidence, you know, Their opinions are totally disconnected from anything in the record. | ||
| So back to creativity. | ||
| If you want to educate the judge, think about tutorials. | ||
| Tutorials are a good way to educate a judge on the law. |