Eastern District of Texas Federal Court Practice

State Bar of Texas Annual Meeting - Houston - June 26-27, 2008

Last week Jamie and I  took our oldest Grayson (9) to the State Bar of Texas Annual Meeting in Houston,  It was my last meeting as a member of the State Bar board of directors representing the 25 Northeast Texas counties of Bar district 1 - I was replaced by Susan Fisher from our firm's Sherman office Thursday morning (she's shown to the right in the attached photo in my sons' play room at my office taken at our open house - to the left is my partner Clyde Siebman, who also represented Bar district 1 in the 1990's, making three directors or former directors in our seven lawyer firm - neat, huh?).  I attended the various bar board events, the Litigation Section council meeting (my first as an officer after six years as a member - I went into the officer rotation this year as treasurer) and several seminars and events.  My favorites were:

• Jeffrey Toobin, senior legal analyst for CNN and staff writer at The New Yorker speaking about the U.S. Supreme Court at the bench/bar breakfast.  We went to dinner with Mr. Toobin the night before with the Litigation Section council, and thoroughly enjoyed his talk (and am looking forward to reading his new book The Nine on the Supreme Court). Did not get to visit with him, other than to learn that Marshall native Bill Moyers is a good friend of his dad's while getting my book signed.  But thoroughly enjoyed his talk.
• A debate on immigration sponsored by the Lit Section including panelists David Martin of the University of Virginia School of Law, Cecilia Munoz of the National Council of La Raza,and Mark Krikorian of the Center for Immigration Studies. ESPN Legal Analyst Roger Cossack moderated - he's a repeat player in both this role and the dinner the night before, where he holds forth on sports law issues - always a highlight.
• Judicial panel moderated by LS chair Alistair Dawson and featuring Judge Royal Furgeson of San Antonio.
• Judicial panel sponsored by the State Bar Intellectual Property Section on patent litigation featuring Judges Chad Everingham, Barbara Lynn and Nancy Atlas.  Topics included stays pending reexam, patent rules, "hate mail" between lawyers, and what judges like and don't like.

One of the highlights for us (and the reason we brought the nine year old, who had to sit through two dinners with dozens of lawyers, and did so perfectly enough to merit a Speed Racer helmet) was that LS former chair Talmage Boston of Winstead (the yellow rectangle folks) had scored us seats at Friday night's match between the Houston Astros and the Boston Red Sox at Minute Maid Park,  which is across the new Discovery Green park (which is outstanding, by the way) from both the convention center and our hotel.   

After the game, they opened the roof at the ballpark and had a fireworks show, which was very nice.  Not a good night for the home team, by the way - they lost 6-1, but rallied with 11-10 and 3-2 wins yesterday and today to take the series).  Overall a great trip with Jamie and Grayson.  I'll miss working with the State Bar board, but I'm looking forward to continuing to work with the (outstanding) State Bar staff and volunteer attorneys in my new jobs as vice chair of the Texas Bar Journal board of editors and treasurer of the Litigation Section. 

Moore v. Quarterman - the "other" en banc case from the Eastern District of Texas

Next week's Texas Lawyer will contain a short article by reporter John Council on the other case from the Eastern District of Texas that was argued right after In re Volkswagen. 
Eric Lynn Moore is a Texas death-row inmate who in 2005 Judge Leonard Davis of Tyler ruled was mentally retarded. Moore planned the robbery of an elderly couple that left one of them dead and the other paralyzed.  Ed Marshall, chief of the post-conviction litigation division at the Texas Attorney General's Office, argued that Moore is not mentally retarded. Marshall told the en banc Fifth Circuit that Moore had a 74 IQ (people with a 70 IQ or lower are considered mentally retarded). 
As readers might be aware, the U.S. Supreme Court prohibited the execution of the mentally retarded in Atkins v. Virginia in 2002. But last year in a 2-1 decision, a Fifth Circuit panel denied Moore's Atkins claim, finding that he had not first exhausted his mental retardation claims in state court. That decision was subsequently set for en banc review.
But Council noted (will note?) that Judge Davis' ruling "hardly came up" during the May 22 oral arguments. While Moore filed an Atkins claim in state court after that case came out, he filed it before the Court of Criminal Appeals issued Ex Parte Briseno in 2004, in which that court established the evidence a defendant must show to prove mental retardation.  Not surprisingly, then, Moore's later Atkins claim briefing in federal court was more extensive than the briefing submitted in state court.  According to Council, that seemed to trouble Chief Judge Edith Jones. "You can't create a whole new record in federal court if you haven't presented it in state court," she told Moore's lawyer, Sherman attorney Scott Smith.  "We are all more familiar [now] with what it means to be retarded," Smith responded. 
My notes from the argument are unclear as to whether Smith also said that the reason that he didn't go back in time and tell himself what he should have argued in the state court proceeding after reading Ex Parte Briseno was that  Doc Brown's time machine was not working that week. 

En Banc oral argument in In re Volkswagen II

I’m on my way back from attending the oral argument in the In re Volkswagen II case. I won’t provide a blow by blow of the comments and questions by the Fifth Circuit judges, but there are a few general things I can say. First, a number of the judges were skeptical that the standards for mandamus were present in this case, and some pointed out the fact situation in this case (VW proferred two affidavits from witnesses who claimed inconvenience, and unlike In re VW I in this case the third party defendant affirmatively stated that trial in the Eastern District was not a problem for him) was pretty thin for finding that Judge Ward’s decision was sufficiently wrong to justify mandamus relief. This type of questioning was much more prominent today than it was when I argued the case to the second panel last July.  Second, although there were a number of good questions about what the 1404 analysis requires, and specifically what weight the plaintiff’s choice of forum should receive, even the author of the second panel opinion, Judge Jolly, agreed that the plaintiff’s choice of forum is certainly a factor to be considered, and seemed to concede that to the extent the second panel’s opinion said in places that it was not, that wouldn’t be correct and wasn’t what he intended – he intended for the panel opinion to reflect the law, and did not believe – as Plaintiffs argued – that it was an “outlier” that was inconsistent with what the other circuits had held on the subject of the weight to be accorded the plaintiff’s choice of forum. To my surprise, although there were pointed questions from several of the judges, the only really “negative” questioning for the plaintiff came from judges Jolly, Clement and Owen (who were the three members of the second panel) on the standards that should be applied to motions to transfer, and review of those motions and Chief Judge Edith Jones. In comparison to my experience at the second panel argument with these three judges, their questioning was of approximately the same tenor as last July – but with the exception of Judge Jones, none of the other judges matched it – in fact only about half the judges asked questions.
Judge Jones expressed a concern that Judge Ward’s venue opinions she had studied were inconsistent in saying whether the travel from Marshall to Dallas was sufficiently inconvenient to weigh in favor of/support/justify a transfer (I wasn’t really clear what she was saying on this point, although she was clearly expressing a concern about Judge Ward’s orders in a number of cases – not just the one involved in this mandamus proceeding. I don’t know which opinions she is referring to, but I can say from experience that whether the convenience of Dallas-area witnesses supports a transfer in Judge Ward’s court depends heavily on what kind of case is involved and what the witness’ testimony is, and how important it is to the case. I’ve had slip and fall and other cases transferred to Dallas, but products cases typically not for reasons I won’t go into here – see Judge Davis’ Network-1 opinion for a better explanation than I could ever give). What she was clear about, however was her concern that if cases that arose in Dallas could be heard in Marshall, Houston cases might start going to Lufkin or Beaumont to be heard. She also said – and I hope I am relating it correctly – that travel from Dallas to Marshall in “deep East Texas” was not via an improved highway (my words – I’m not sure what the term she used but the implication we heard was that the region wasn’t accessible by major highways). Of course travel between Dallas and Marshall is by Interstate 20, which is as improved as Texas highways get, so it’s possible I simply misheard what she was saying.
There was no mention made by either counsel or by any of the judges of patent cases being heard in the Eastern District, or the AIPLA or ad hoc committee briefs. The en banc court as a whole seemed focused completely (and appropriately, I might add) on whether the standards for mandamus relief were met in this case.

New transcript redaction procedures go into effect

Judge Heartfield just signed General Order 08-8, Download 08-8.pdf which amends several local rules and adds new Local Rules CV-5.2 and CR-49.1, which create new transcript redaction procedures in accordance with U.S. Judicial Conference policy regarding redacting private information from transcripts.
Long and short of it is this - Judicial Conference policy - and now FRCP 5.2 - require (kinda sorta - you have to read the rule) that certain private information (bank accounts, social security numbers., etc.) be redacted from court filings.  When the issue came up of what to do about private information in transcripts - because forthcoming changes will result in hearing and trial transcripts becoming available online - procedures were added last year requiring attorneys to take responsibility for redacting private information in transcripts before they become available online.  These changes amend those changes to set out the procedures for attorneys to follow to redact when the need arises, while avoiding giving us all free copies of the transcripts from the court reporters under the guise of letting us review them to see if any changes are needed.  Essentially, if you didn't make sure during the hearing that private information was kept out of the record, you'll need to either buy a transcript to prepare the
changes, or view the transcript at the terminal in the clerk's office.
If you have this come up in one of your cases, read this order carefully to see what the procedure is.

CM/ECF and PACER back online

This afternoon the Eastern District's online filing system went back online several days ahead of schedule.  The General Order extending deadlines till Monday is still in effect, though, so everyone enjoy the first deadline-less day (tomorrow) in recent Eastern District history.. 
It's almost as if Judge Steger wanted us all to have no excuse not to show up tomorrow for the renaming of the courthouse in Tyler ...

General Order 08-06 - extension granted due to ECF down time

Chief Judge Heartfield just signed and posted General Order 08-06, which extends filing deadlines to this coming Monday as a reuslt of the ECF system problems.  The order states that "[a]ll parties should use their best efforts to comply with existing scheduling deadlines by timely serving opposing counsel, but, in light of the above, all formal filing deadlines in this court occurring between the dates of Friday, May 2, 2008 and Sunday, May 11, 2008 are hereby EXTENDED to Monday, May 12, 2008 pursuant to Local Rule CV-5(a)(10).  Any emergency matters occurring between the dates of May 2, 2008 and May 11, 2008 may be conveyed to the court in paper or electronic format via hand delivery, conventional mail, facsimile or electronic mail.  Counsel filing such emergency documents retain the responsibility to serve those documents on opposing counsel per Fed.R.Civ.P. 5."  (Internal footnote omitted).

One pointer an eagle-eyed reader suggested - although a district court has the ability to extend its own internal deadlines, a local rule or order may not be able to extend FRCP deadlines, such as the time to file motions for JMOL or a new trial under FRCP 50 and 59, or the time to file a notice of appeal under FRAP 4.  Accordingly, readers might want to consider whether to file these sorts of documents in paper or by drop box rather than wait for Monday to e-file. 

In any event, the outage is currently estimated to be about 36 hours, so online filing might conceivably be back up Thursday.

Eastern District e-filing down temporarily - read for details

I just learned that the Eastern District's e-filing database is the largest of any federal judicial district - but the bad news is that the way that came out was that there's been a technical problem in the system which brought the e-filing system down Friday afternoon around 3:30.  The system is still down, and while it's possible the system may come up this week, the process of reloading this enormous database that has now become necessary is now expected to take the rest of the week, so that  online filing will not be available  until this coming Monday (a week from today) May 12. 
Keep a sharp eye on the district's home page, because we expect an order from the chief judge soon  - it may extend any filing deadlines that would otherwise be due this week to Monday May 12.  The e-filing page may eventually redirect you to the district website explaining what's going on, but in the mean time just watch the district's page.  I'm in a mediation in Dallas as I write this, and I'll try to update readers as soon as I hear anything.

William M. Steger Federal Building and United States Courthouse - Naming Ceremony Set for May 9, 2008

The Federal Building and United States Courthouse in Tyler, Texas will be renamed for the late U.S. District Judge William M. Steger at a noon ceremony on Friday, May 9, 2008.  The official invitation can be downloaded here - Download steger_courthouse_invitation.pdf .  The program can be downloaded here - Download tyler_program.pdf Master of ceremonies for the event will be Judge Steger's former law clerk Andy Tindel of Tyler. 
I can't help adding that Judge Steger's biography in the program doesn't include one of my favorite things about him - that his service as a Army Air Corps combat fighter pilot from 1942-1943 included a stint flying a Spitfire with the Royal Air Force.

Big changes to certificates of conferences

On March 19, Chief Judge Heartfield signed General Order 08-05, which makes minor modifications to the rules for motions for leave to file and motions for leave to exceed page limitations, but significant changes to to certificate of conference requirement.
Motions for Leave to File - motions for leave to file (excluding motions to exceed page limits) the motion must still be "accompanied" by the document, but the document is to be filed separately.  On motions for leave to file something in excess of the page limits, file the oversize document, then file the motion for leave.  Previously both motions required that motions for leave be file "accompanied by" the document sought to be filed.  The "accompanied" language is still present in the first rule, but was deleted from the second - regardless, the motions for leave and the substantive documents are to be filed separately, and on page limits, a specific order (document, then motion) is required.  In other words, don't file the proposed documents as exhibits to the motions for leave any longer.
Certificates of Conference - the rule on these motions went from one sentence and a list of motions excluded from the requirement to approximately two pages of single-spaced  text.  While the rule is phrased in terms of a procedural and a substantive meet and confer requirement, and a certificate of conference requirement, I'll put it in an outline (or checklist) that may be easier to follow, since an "unreasonable" failure to comply with the meet and confer portion of the rule is grounds for disciplinary action.  Here's what the rule says, in outline form:

With the exception of (a) some enumerated motions, and (b) when the non-movant has acted in bad faith by failing to meet and confer, any motion filed must contain a certificate of conference.  While what it must state is slightly different, here's what it requires (additional requirements for discovery motions are italicized):
(1) a statement that counsel has complied with the meet and confer requirement in Local Rule CV-7(h), which consists of:
    (a) a personal conference either by phone or in person between an attorney for the movant and an attorney for the nonmovant
    (b) in discovery motions the attorney requirement is lead trial counsel and local counsel for both sides
    (c) in the personal conference, the participants must give each other the opportunity to express
his or her views concerning the disputes.
    (d) the participants must also compare views and have a discussion in an attempt to resolve their differing views before coming to court. Such discussion requires a sincere effort in which the participants
        (1) present the merits of their respective positions and
        (2) meaningfully assess the relative strengths of each position.
    (e) in discovery-related matters, the discussion shall consider, among other things:
        (1) whether and to what extent the requested material would be admissible in a trial or is reasonably calculated to lead to the discovery of admissible evidence;
        (2) the burden and costs imposed on the responding party;
        (3) the possibility of cost-shifting or sharing; and
        (4) the expectations of the court in ensuring that parties fully cooperate in discovery of relevant information.
    (f) the participants must meet and confer in good faith, and have concluded, in good faith that the discussions have conclusively ended in an impasse, leaving an open issue for the court to resolve.  "Good faith" requires:
        (1) honesty in one’s purpose to discuss meaningfully the dispute
       (2) freedom from intention to defraud or abuse the discovery process, and
       (3) faithfulness to one’s obligation to secure information without court intervention.
Note: "Good faith" may not be shown by correspondence, emails, and facsimile transmissions, however such materials may be used to show bad faith of the author.
(2) whether the motion is opposed or unopposed. (Since any motion with a certificate is almost by definition opposed, the requirements continue below).
(3) a statement signed by movant's attorney (whether this is a separate signature requirement from the certificate itself is not stated) that:
    (a)  the personal conference or conferences required by this rule have been conducted or were attempted (this seems to be the same thing as #1)
    (b) the date and manner of such conference(s) or attempts,
    (c) the names of the participants in the conference(s)
    (d) an explanation of why no agreement could be reached, and 
    (e) a statement that discussions have conclusively ended in an impasse, leaving an open issue for the court to resolve.
(4) in discovery-related motions, the Certificate of Conference shall be signed by
    (a) the lead trial counsel and
    (b) any local counsel.
(5)  In situations involving an unreasonable failure to meet and confer, the movant shall set forth in the Certificate of Conference the facts believed to constitute bad faith.

TrollTracker suit removed to Eastern District of Texas

References to the Eastern District as a "banana republic" by Mr. Frenkel or any other Cisco employees were notably absent when Cisco and Frenkel removed the defamation case filed against them from state court to the Eastern District of Texas today.  The case was removed to the Tyler division, where it drew U.S. District Judge Michael Schneider.  Judge Schneider is familiar to patent practitioners who work in the Tyler and Sherman Divisions, where he handles part of the docket, and to Texas lawyers in general as a former state district, appellate and Texas Supreme Court judge (I think he was also a municipal court judge, but I'm not positive about that - I believe his son currently is, but, again, I may be mistaken).
Judge Schneider has an interesting connection to Marshall.  In my post when he first joined the ED, Judge Schneider Confirmed for Eastern District Bench I noted that in a July 2003 profile, Justice Schneider told the Texas Bar Journal “I feel real fortunate (to have grown up in East Texas) .... When I was in the eighth grade — I lived in Hallsville, a small town between Marshall and Longview — we went on a field trip to Marshall, 13 miles away, and we watched a trial. I had never seen a trial before and I was completely fascinated with witness testimony, the judge, and the performance of the lawyer — it made an indelible imprint on me."
No mention of it being a banana republic, but maybe I didn't read the whole article.