August 26, 2022

This is a copy of the Redacted Search Warrant as filed with the court earlier today. This was unsealed and made available to the public intentionally after a hearing and due process. Sometimes this disclosure is accidental, as discussed in Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case – Part 3, Part 2, and Part 1. Before the warrant, I have included an excerpt of Judge’s ruling that allowed the unsealing with redactions. In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022).

Despite the First Amendment right of access, a document can be sealed if there is a compelling governmental interest and the denial of access is “narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). . . .

The Government argues that unsealing the Affidavit would jeopardize the integrity of its ongoing criminal investigation. The Government’s motion says, “As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8. . . .

After weighing all the relevant factors, I find that the Government has met its burden of [*16]  showing good cause/a compelling interest that overrides any public interest in unsealing the full contents of the Affidavit. . . . I must still consider whether there is a less onerous alternative to sealing the entire document. The Government argues that redacting the Affidavit and unsealing it in part is not a viable option because the necessary redactions “would be so extensive as to render the document devoid of content that would meaningfully enhance the public’s understanding of these events beyond the information already now in the public record.” ECF No. 59 at 10; see also Steinger, 626 F. Supp. 2d at 1237 (redactions not feasible because they would “be so heavy as to make the released versions incomprehensible and unintelligible.”). I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government. . . . I therefore reject the Government’s argument that the present record justifies keeping the entire Affidavit under seal. 

Id. at *15

The judge then ruled the partial redactions were not so extensive to result in a meaningless disclosure and this allowed the redacted Search Warrant to fe filed today, August 26, 2022.

EARLY NEUTRAL EVALUATION: Can a Stitch In Time Save Nine? – Part Two

August 1, 2022

Conclusion to a two part Blog on Experiments by the US District Courts, in both the Southern and Northern Districts of California, with a type of Alternative Dispute Resolution procedure called Early Neutral Evaluation (ENE).

Losey continues to ponder the “stitch in time” savings possible from ENE

This is the conclusion of the blog, EARLY NEUTRAL EVALUATION: Can a Stitch In Time Save Nine? See here for Part 1. This blog considers the Early Neutral Evaluation rules of the United States District Court, Northern District of California. In this part two the EDRM Metrics Model is considered, so is the all important Rule 1 FRCP. Other jurisdictions that have adopted ENE rules are mentioned in this part before the blog concludes with the dangerous, but interesting task of mixing idioms, Stitch in Time and of Whole Cloth. I will prove that the Whole Cloth idiom is a clear favorite in the law and conclude with one-sentence quotes from some of the more interesting cases that bench slap lawyers and other judges with this time honored insult.

ENE Session Procedures

United States District Court, Northern District of California, Rule 5-11 specifies the procedures to be followed in a ENE Session. Here we get to the meat of the process. It is what I would expect and looks well thought out. ENE Rule 5-11:

(a) Components of ENE Session. The Evaluator shall:

(1) Permit each party (through counsel or otherwise), orally and through documents or other media, to present its claims or defenses and to describe the principal evidence on which they are based;
(2) Help the parties identify areas of agreement and, where feasible, enter stipulations;
(3) Assess the relative strengths and weaknesses of the parties’ contentions and evidence, and explain carefully the reasoning that supports these assessments;
(4) Estimate, where feasible, the likelihood of liability and the dollar range of damages;
(5) Help the parties devise a plan for sharing the important information and/or conducting the key discovery that will equip them as expeditiously as possible to enter meaningful settlement discussions or to position the case for disposition by other means;
(6) Help the parties assess litigation costs realistically;
(7) If the parties are interested, help them, through private caucusing or otherwise, explore the possibility of settling the case; and
(8) Determine whether some form of follow up to the session would contribute to the case development process or to settlement.

(b) Process Rules. The session shall be informal. Rules of evidence shall not apply. There shall be no formal examination or cross-examination of witnesses and no recording of the presentations or discussion shall be made.

(c) Evaluation and Settlement Discussions. If all parties agree, they may proceed to discuss settlement after the evaluation has been written but before it is presented. The evaluation must be presented orally on demand by any party. Copies of the written evaluation may be provided to the parties at the discretion of the Evaluator. The parties also may agree to discuss settlement after the evaluation has been presented.

EDRM Metrics Model

I hope the ENE and attorneys involved have the expertise required to analyze and control discovery costs, since that is the primary activity in litigation. If so, these ENE Sessions could be of tremendous benefits to achieving the just, speedy and inexpensive goals of Rule 1, Federal Rules of Civil Procedure.

The analysis of the attorneys and Experts leading the ENE Sessions would benefit significantly by using the EDRM’s Metrics Model. It helps guide the measurements, the metrics, needed to manage the costs and time required for discovery and other complex litigation tasks. The EDRM Metrics Model shown here provides a good tool to improve the dynamics of a ENE Session. The experts should at least have some passing familiarity with the analytics and planning activities involved, especially the seven outside elements identifying the tasks of discovery: Custodians, Systems, Media, Status, Formats, Q&A, and Activities.

Additional Rules and Practices

Moving on, Rule 5-12 governs confidentiality, Rule 5-13 addresses follow up with the Evaluator, typically last minute attempts to settle (after the parties have cooled off, and seen their attorney fee bills), and Rule 5-14 Certification of Session. In that final certification “the Evaluator must report to the ADR Unit: the date of the session, whether any follow up is scheduled, and whether the case settled in whole or in part.”

The next rules, after rule five in the Northern Districts ADR rules, govern mediation. The ENE local ADR rules are completely separate.

Also interesting to see that in the McCormack v. Sterling Jewelers Inc., case in the Southern District the Magistrate appointed himself as the Evaluator. The judge also specified that the required ENE sessions were to be by video conference. McCormack v. Sterling Jewelers Inc., No. 22-cv-00525-AJB-BGS, 2022 U.S. Dist. LEXIS 106345 (S.D. Cal. June 14, 2022). I assume this is a common practice in both Northern and Southern Districts. By the way, I should mention that in the Northern District, Early Neutral Evaluation procedures and rules have been in effect since 1989. See eg.: EEOC v. Sears, Roebuck, & Co., No. C-89-0928 TEH, 1989 U.S. Dist. LEXIS 14298 (N.D. Cal. Aug. 18, 1989). It is just their use that has been ramped up recently.

ENE and Rule 1

I applaud the efforts of the Northern and Southern California courts to experiment with creative approaches to effectuate the goal of Rule 1, Federal Rules of Civil Procedure. This may be our most important rule in the federal system and bears repetition:

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Just, speedy, and inexpensive, that should always be our goal in litigation. Again also see: 23 U.S.C., Chapter 23, Civil justice expense and delay reduction plans (§§ 471 — 482).

Other Courts and ENE

Other courts and Bar Associations, including the Federal Rules Committee, may well want to copy the complete and well written Northern Districts ENE Rules. It looks like a very good set of rules to me, but I would want to hear what parties and attorneys using the rules in California think about them. Feel free to leave attributed or anonymous comments below.

In theory, it all looks good. Individual parties outside of California or other courts with ENE local rules could always stipulate to it. I expect that most judges in any jurisdiction would Adopt, Order and Approve such a procedure. For an appropriate Order, again see McCormack v. Sterling Jewelers Inc., No. 22-cv-00525-AJB-BGS, 2022 U.S. Dist. LEXIS 106345 (S.D. Cal. June 14, 2022).

Of course, also see Rule 5, cited and quoted above for the United States District Court for the Northern District of California. Also, in the Southern District, see Rule 16.1., as well as local judge rules, including those of Magistrate Judge Bernard G. Skomal in the McCormack case. They are called Chambers Rules and the ENE provisions are found in Section II at pages 2-3. The Central District of California ADR programs do not appear to have an ENE program, just mediation.

The Eastern District Court has what they call a Voluntary Dispute Resolution Program (VDRP). They do not appears to have specific rules for mediation, much less Early Neutral Evaluation, just some general encouragement shown below that mentions ENE (emphasis added):

It is the Court’s intention that the VDRP shall allow the participants to take advantage of a wide variety of alternative dispute resolution methods. These methods may include, but are not limited to, mediation, negotiation, early neutral evaluation and settlement facilitation. The specific method or methods employed will be determined by the Neutral and the parties.

I know that a few other courts around the country have different types of early neutral evaluation, including the always progressive Minnesota. Minnesota’s State Supreme Court Rule 114 defines ENE as:

“…a forum in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties. This occurs after the case is filed but before discovery is conducted. The neutral then gives an assessment of the strengths and weaknesses of the case. If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing discovery.”

Also see (and this is by not an exhaustive, nor properly cited list, so, as always, do your own due diligence): Ohio Fed. Dist. Ct. (N.D.), Civ. LR 16.5; Local Rules of Practice of the United States District Court for the District of Nevada, Part II, Civil Practice, Part II LR II 16-6, Early Neutral Evaluation; U.S. Dist. Ct. (Vt.) LR 16.1;  South Carolina State & Federal Court Rules 14-16, SC ADR; E.D. Mo. L.R. 6.01; WD Penn.; Rule 4.8 of the ADR Policies and Procedures; D.C.COLO.LCivR 16.6(a).

If your court, state or federal, has adopted detailed rules for a Early Neutral Evaluation program, please let me know. I’m especially interested in what practitioners and litigants think of it after having gone through the process a few times. Send me an email or leave a comment below.

What Happens if a Stitch in Time Reveals a Case Made Out of Whole Cloth?

My linguistic curiosity, which I assume most lawyers have, forces me to examine the mixed idioms of stitch in time and whole cloth. They go together seamlessly don’t you think? (Sorry, could not resist.)

First, it should be noted that these idioms, although both referencing sewing and fabric in some way, have very different meanings. The “Stitch it Time” idiom preaches the common wisdom of expert proactivity and the dangers of prognostication. That is why I picked it to identify this article on EARLY Neutral Evacuation. According to Webster’s Dictionary, the idiom is commonly used to mean “that it is better to fix a problem when it is small than to wait and let it become a bigger problem.” Webster’s also says it is among the top 2% of word popularity. The British Phrase Finder web explains:

This proverbial expression was obviously meant as an incentive to the lazy. It’s especially gratifying that ‘a stitch in time saves nine’ is an anagram for ‘this is meant as incentive’!

The Anglo Saxon work ethic is being called on here. Many English proverbs encourage immediate effort as superior to putting things off until later; for example, ‘one year’s seeds, seven year’s weeds‘, ‘procrastination is the thief of time‘ and ‘the early bird catches the worm‘.

The ‘stitch in time’ notion has been current in English for a very long time and is first recorded in Thomas Fuller’s Gnomologia: A Collection of the Proverbs, Maxims and Adages That Inspired Benjamin Franklin and Poor Richard’s Almanack, 1732: “A Stitch in Time May save nine.”

Now as to the idiom concerning whole cloth. Websters defines “whole cloth” as a pure fabrication — usually used in the phrase out of whole cloth. It is in the top 5% of popular words.

According to the Grammarist website:

Out of whole cloth is an American idiom that entered the English language in the early 1800s. . . .

Out of whole cloth describes something that is untrue and has no grounding in the facts. The expression is generally used in the phrases made out of whole cloth, make out of whole cloth, makes out of whole cloth, making out of whole cloth. Whole cloth is a piece of fabric that has not been cut into pieces. The literal meaning of the term whole cloth goes back to the 1400s, but the idiomatic expressions pertaining to whole cloth first appeared in America in the early 1800s. The idea behind the meaning of the phrase out of whole cloth is that a lie is a completely new fabrication, as is a piece of whole cloth.

Perhaps because fraud is a much more likely topic of judicial consideration that proactivity, U.S. courts seem to love the “made out of whole clothe” idiom, usually as in “your argument is made out of whole cloth.” To prove my point, and show that it too is not made up out of whole cloth, according to Lexis the “Stitch in Time” idiom has been referenced in thirty different cases, whereas the “Whole Cloth” idiom has been used four-thousand, six-hundred and three times. Obviously, Whole Cloth is a clear favorite of our Judges. Here are a few representative samples of its use. Note, the recent cases where the expression is used are interesting in their own right.

  • “On the newly minted undue burden test, the Chief Justice criticized it as made “out of whole cloth” instead of a product of stare decisis.” Planned Parenthood of the Heartland, Inc. v. Reynolds, No. 21-0856, 2022 Iowa Sup. LEXIS 80, at *160 (June 17, 2022) (Christensen, Chief Justice, concurring in part and dissenting in part).
  • “The Supreme Court of Utah does not make pure policy out of whole cloth.” In re Sex Change of Childers-Gray, 2021 UT 13, ¶ 1, 487 P.3d 96, 99.
  • “Thus, it can be argued that Defendants Yang and Wu fashioned fraudulent submissions, the stock ledger and the Form 1099, out of whole cloth.” United States v. Yang, No. 16-CR-00334-LHK, 2020 U.S. Dist. LEXIS 95702, at *53 (N.D. Cal. May 29, 2020).
  • “.. the vocational expert’s numbers appeared to be spun out of whole cloth.” Gracz v. Berryhill, No. 16 cv 4099, 2017 U.S. Dist. LEXIS 55683 (N.D. Ill. Apr. 12, 2017).
  • “… Tukes’s costs being less than they would have been had her arguments been drawn from whole cloth.” Tukes v. Richard, Nos. B307242, B308337, B312086, 2022 Cal. App. LEXIS 604, at *18 (Ct. App. July 12, 2022).

I suggest this last reference as to a lawyers’ arguments being made out of “whole cloth” is the most common one you will see in trial courts. It is a judicial slap as to an unsupported argument, with a hint that the argument was so bad, to the point of almost being a fraud. One has only to think of recent law suits seeking to overturn election results without any factual basis to do so. It is also a very popular idiom with appellate courts too, again used as a disparagement, but often against other judges or opinions.

Our beloved Supreme Court, since 1947 when the phrase was first used, really loves the “whole cloth” insult. Typically it is a bomb used in a dissent against the victorious majority of other judges in the court, not against an attorney. (Although you probably hear it often in oral arguments.) The “whole cloth” idiom has been used in at least fifty-nine different cases since 1947, typically in a dissent. Before that the justices would use other barbs in their dissents. A few opinions using whole cloth language of interest are:

  • “The plurality’s equating of “in opposition to” with “targeting” is seemingly woven out of whole cloth. Borden v. United States, 141 S. Ct. 1817, 1846 n.13 (2021) (J. Kavanaugh’s dissent).
  • “But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2142 (2020) (J. Thomas dissent).
  • “And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1922 (2020) (J. Thomas).
  • “Not one of the cases on which the Court relies today supports the extraordinary premise that courts can create out of whole cloth an exception to a statutory bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 404, 133 S. Ct. 1924, 1938 (2013) (Dissent J. Scalia).
  • “As will be noted, the one gloss is contradicted by the facts of record and the other is of whole cloth with  [***745]  the “public function” argument’s excision of the religious factor. Everson v. Bd. of Educ., 330 U.S. 1, 57, 67 S. Ct. 504, 531 (1947) (Dissent J. Rutledge).
  • “The Court appears intent upon creating out of whole cloth new constitutionally mandated warrant procedures carefully tailored to make eavesdrop warrants unobtainable. Berger v. New York, 388 U.S. 41, 111, 87 S. Ct. 1873, 1911 (1967) (Dissent J. Harlan).

So getting back to the question and ENE, What Happens if a Stitch in Time reveals a Case Made Out of Whole Cloth? It usually means that one side is happy and another very disappointed. The neutral has found that one or more arguments, claims or defense are spurious. It is actually a good thing to both sides, even if it is used against one of your many claims, as opposed to your whole case. Depending on the experience and wisdom of counsel, and circumstances of the case, both sides could be happy when this phrase is used. The phrase indicates the outside neutral expert thinks that parts of your case are very poor and should be dropped. A good mediator often does the same thing. That is how issues are narrowed and cases are settled.

Such input is common in ADR, or should be, even without use of the strong language of whole cloth, suggesting as it does, fraud. If I ever used that kind of inflammatory language when serving a a Special Master or Arbitrator, watch out. It means I feel pretty strongly about the point. It is more than a subtle hint that you should reconsider your argument while you still can.

It is very common for parties to make multiple alternative pleadings, causes of action, only to drop one or more of them before trial. The same applies to defenses. Everybody is concerned regarding waiver, and for that reasons, all kinds of semi-bogus pleadings are made. Why not save time and money and drop them early?

Two other popular idioms come to mind that are often used by lawyers when explaining their lengthy alternative pleadings, such as throw against a wall and see if it sticks, or run it up the flagpole and see if anyone salutes it. Who knows, you may think one or more of you arguments, claims or defenses stink, but that the judge, or an outside neutral, might buy it, might salute the flag. Long ago I used that flag salute expression quite often. You or your client did not want to waive an argument, so you kept it in. The realistic critical input of an Early Neutral Evaluation can save the parties time and money that might otherwise be wasted on borderline claims. An outside, neutral expert telling the parties that a particular claim is not going to be saluted by this judge can be very valuable input.


Ralph Losey, Attorney, Special Master, Mediator of Computer Law disputes, AAA Arbitrator and ENE for eDiscovery

To close with a quick plug, ENE sounds similar to the kind of services I can provide in my role as Special Master, although that role is limited to discovery issues. Often the role is strictly adjudicative, but it can, if the parties agree, also include guided settlement discussions. I can also do that for general technology cases under my 1991 Bar certification as a Mediator of Computer Law disputes. (Bet you have not heard of that certification before.)

Can an ENE or other ADR process help the parties save 90%? If the whole case settles early, sure. But if it is just a narrowing of the discovery issues, probably not that much. Despite the old adage about a stitch in time saves nine, the savings will not be that big, not a 90% savings. Certainly not in all cases. Still, the early input of any ediscovery expert should help the parties save substantial time and money in most cases. And that, my friends, is not an argument spun from whole cloth, but rather from more years of experience than I care to remember.

EARLY NEUTRAL EVALUATION: Can a Stitch in Time Save Nine? – Part One

July 18, 2022

First of a two part blog on experiments by the US District Courts, in both the Southern and Northern Districts of California, with a type of Alternative Dispute Resolution procedure called Early Neutral Evaluation (ENE).

Losey ponders and tests whether a stitch in time can save nine?

ENE is different than mediation and special mastery assignments, somewhat of a hybrid, but with an emphasis on expert input. The basic idea behind this alternative dispute resolution tool can be found in the old adage: A stitch in time saves nine. As applied to ediscovery, I have seen many cases where early input of an authoritative discovery expert can be beneficial. If the expert input is provided very early, and if it is followed, it can save the parties both time and money. But can an timely expert stitch really save 90% as the adage suggests?

Common wisdom aside, a ninety percent savings is incredibly high and likely impossible to attain in all but a few cases. Still, in all cases, based on my experience, early expert input can save the parties substantial time and money. Maybe a ninety percent savings is possible in some rare, big cases, where the expert is good and carries a big stick. One has only to think of the savings possible from one expert suggestion, the use of AI instead of armies of attorneys doing linear review. Maybe an overall 90% savings could be reached in a case like that. What is important is that ENE should result in savings, far more than the cost of the exercise, in almost very case. Hopefully, the experiments with ENE now going on in California and elsewhere will confirm my experience.

The current ENE procedures in California are shown in McCormack v. Sterling Jewelers Inc., No. 22-cv-00525-AJB-BGS, 2022 U.S. Dist. LEXIS 106345 (S.D. Cal. June 14, 2022). The order granted the parties a continuance of a mandatory ENE Conference, a continuance that Magistrate Judge Bernard G. Skomal referred to as rare and would not to be repeated. After all, one of the main points of ENE is to be early. The stitch can only save nine if done early, and, if done by an expert.

ENE Has Been Around a Long Time

ENE is not a new idea, although the California Courts pushing the procedure is relatively new. The ABA has long had a one paragraph article explaining ENE: Early Neutral Evaluation. Here is how the ABA introduces practitioners to this form of Alternative Dispute Resolution (ADR):

Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement.

As a practitioner in District Courts since 1980, I personally think ENE is a very good idea. So too did Congress in 1990 when it first enacted the Civil Justice Expense and Delay Reduction Plans Act (CJRA), which included Early Neutral Evaluation as one of many recommended ideas. 28 U.S.C.S. § 473(a)(3), (b)(1) & (b)(4). Ironically, it has taken more that thirty years for this type of early intervention ADR to catch on, but I’m reminded of another old saying I believe in – Better late than never.

The California District Courts recent ENE rules are an implementation of this initiative to reduce federal litigation expense and delay. This is a longstanding problem. This article provides citations at the end to other federal courts with active Early Neutral Evaluation programs. I urge all attorneys and judges to give ENE a try. It may not save ninety percent in all cases, but, if done with a good expert, it should certainly help effectuate the goals of Rule 1, Federal Rules of Civil Procedure.

ENE in the United States District Court for the Northern District of California.

Different forms of the ENE Rule have been adopted by the Southern and Northern Districts in California. This blog article will focus on the much more detailed ENE rule found in the United States District Court for the Northern District of California.

The rule is identified in the Northern District as Local Rule 5 governing Alternative Dispute Resolution, ADR Local Rule 5. Here is the Local Rule’s description.

5-1. Description

In Early Neutral Evaluation (ENE) the parties and their counsel, in a confidential session, make compact presentations of their claims and defenses, including key evidence as developed at that juncture, and receive a non-binding evaluation by an experienced neutral lawyer with subject matter expertise. The Evaluator also helps identify areas of agreement, offers case-planning suggestions and, if requested by the parties, settlement assistance.

The Rule goes on to describe eligibility, which I interpret to mean it is available in any case where at least one party wants it, and may be required anyway, if the judge wants it. Most judges would want any complex cases to try such an early case settlement with the help of an expert neutral. Note the rules requirement as to availability of requisite expert. This shows there is a need for Neutrals with special skills and experience, including technology, to play a role much like that of a special master, but with settlement tasks within the scope of their assignment.

5-2. Eligible Cases

Subject to the availability of administrative resources and of an Evaluator with subject matter expertise, appropriate civil cases may be referred to ENE by order of the assigned Judge following a stipulation by all parties, on motion by a party under Civil L.R. 7, or on the Judge’s initiative.

Here is how the next Rule 5-3 on Evaluators begins. See the full rule for many remaining details.

5-3. Evaluators (a) Appointment. After entry of an order referring a case to ENE, the ADR Unit will appoint from the Court’s panel an Evaluator who has expertise in the subject matter of the lawsuit, is available during the appropriate period and has no apparent conflict of interest. . . .

It is interesting to note that under 5-6, much like situations where special masters are appointed, and unlike mediation appointments, ex parte communications are strictly controlled.

5-6. Ex Parte Contact Prohibited

Except with respect to scheduling matters, there shall be no ex parte communications between parties or counsel and the Evaluator, including private caucuses to discuss settlement, until after the Evaluator has committed his or her evaluation to writing and all parties have agreed that ex parte communications with the Evaluator may occur.

The timing component here is very important. First you get the written opinion, then settlement discussions can begin. The Evaluator has no adjudicatory power, so this is just a peek into how the court itself will probably rule. But this kind of neutral evaluation can often have a very sobering impact onto one or both sides.

At least seven days before the first Early Neutral Evaluation meeting with the Evaluator, the parties have to serve on the Evaluator, and each other, an ENE Statement. ADR ENE Rule 8. These are not to be filed with the court and so would be outside of Pacer and the public disclosure that goes with Pacer. Subsection c. sets out the contents of the ENE Statement. Note its similarity with a typical mediation statement.

(c) Content of Statement. The statements must be concise, may include any information that may be useful to the Evaluator, and must, unless otherwise directed by the Evaluator:

(1) Identify, by name and title or status:

(A) The person(s) with decision-making authority, who, in addition to counsel, will attend the ENE session as representative(s) of the party, and

(B) Persons connected with a party opponent (including an insurer representative) whose presence might substantially improve the utility of the ENE session or the prospects for settlement; Describe briefly the substance of the suit, addressing the party’s views of the key liability issues and damages and discussing the key evidence;

(3) Address whether there are legal or factual issues whose early resolution would reduce significantly the scope of the dispute or contribute to settlement negotiations;

(4) Identify the discovery that is necessary to equip the parties for meaningful settlement negotiations; and

(5) Include copies of documents out of which the suit arose (e.g., contracts), or whose availability would materially advance the purposes of the Evaluation session, (e.g., medical reports or documents by which special damages might be determined).

This is what you would expect and follows typical mediation rules.

As a big believer of the rights of litigants to protect their trade secrets, I was pleased to see Rule “5-9. Special Provisions for Patent, Copyright, or Trademark Cases.” Has what parties need to protect their confidential data.

Rule 5-10 governs attendance at the ENE hearing with the Evaluator. All parties and their counsel are required to appear with a few exceptions allowed. The reason provided in Rule 5-10 for these stringent attendance requirements is instructive:

This requirement reflects the Court’s view that the principal values of ENE include affording litigants opportunities to articulate directly to other parties and a neutral their positions and interests and to hear, first hand, both their opponent’s version of the matters in dispute and a neutral assessment of the merits of the case and the relative strengths of each party’s legal positions.

Again, much like mediation.

Surprise, it’s whole cloth!

To be continued . . . Part Two of this Blog will examine the Procedures to be followed in an ENE Session, the suggested helpful input of the EDRM’s often overlooked, Metrics Model, ENE and Rule 1, ENE Experiments in Other Courts and, as always, my Conclusion. As a bonus, I’ll also consider the crazy idea of mixed idiots, um, I mean mixed idioms. What happens if a stitch in time reveals a case made out of whole cloth? Surprise!

%d bloggers like this: