A new study of state judges that was conducted by the American Bar Association reports that pro se representation is up across the country. Apparently, this trend is a disadvantage for both the litigants and judges. The survey shows that pro se litigants make procedural and evidentiary errors, and experts claim that judges also spend more time on pro se cases, thereby delaying court proceedings. Click here to read an article from law.com about the survey and its results. The survey was conducted by the Coalition for Justice.
The Ohio Supreme Court decision in Erwin v. Bryan has clarified when plaintiffs can and cannot name John Doe defendants under Civil Rule 15. The crux of the opinion is that using that designation is acceptable if a plaintiff knows who a defendant is but does not know his/her/its name in time to file to meet a statute of limitation. However, the Court will not allow parties to use "placeholders" for unknown defendants to buy time to find them after a statute of limitations has run. Click here to read the Court's press release and to find the link for the oral argument in the case.
Locally, litigants and attorneys partcipating in the Cuyahoga County Common Pleas Court's complex litigation docket must use LexisNexis File and Serve to access or file documents. Interestingly enough, according to law.com, a woman in Texas has sued a court and judge there, as well as LexisNexis, over a similar civil filing requirement for Montgomery County, Texas. Her suit was filed as a class action in federal district court in Houston under both the Texas and US constitutions and alleges, among other claims, due process and equal protection violations, as well as RICO violations under federal law (18 U.S.C. secs. 1961-1968). According to the article, the woman has paid almost $450 so far to access and/or file documents in her case. Click here to see a list from the ABA indicating which courts employ e-filing rules. Click here to listen to our Law Library's Podcast containing information about the local Cuyahoga County complex litigation docket system.
According to a Third Branch Newsletter, the federal courts have updated many of their court forms. Although 56 total forms were revised, some of the most important changes were made to search and seizure warrant forms and the in forma pauperis application. All of the forms are available at the US Courts website.
The Sixth Circuit held that Fed.Civ.R. 54(d)(10 and 28 USC 1920(6) permit the charging of costs against the parties, not their attorneys. In re Cardizum CD Antitrust Litigation (Feb. 22, 2007), Sixth Circuit Case No. 05-2375.
Per the Myfairdebt.com Forum, the Sixth Circuit held that expert witness fees could not be taxed as costs because 28 U.S.C. 1920 does not so provide. Some of the expert witnesses expenses for travel and attendance may be recoverable as ordinary witness costs under 28 U.S.C. 1821. L& W Supply Corp. V. Acuity (Jan. 23, 2007), Sixth Circuit Case No. 05-6845.
The Ohio Supreme Court issued for the second public comment period Proposed 2007 Amendments to the Ohio Rules of Civil Procedure (Rules 10 and 86), Ohio Rules of Criminal Procedure (Rules 10, 43 and 59) and Ohio Rules of Evidence (numerous - to incorporate gender neutral language). Comments are due by March 7, 2007.
The proposed rules clarify what is good cause for an extension of time for an affidavit of merit in a medical malpractice case under Civ. R. 10(D)(2). The rules also allow for the use of videoconferencing in criminal cases. Crim R. 10 and 43.
Ohio HB 336 , section 6, created the Joint Committee to Study Court Costs and Filing Fees, effective Jan. 18, 2006. The Committee's recommendations must be submitted by Jan 18, 2007, to the Ohio Supreme Court, the General Assembly, and the Governor. The Committee's meetings are open to the public. Chief Justice Moyer commented:
"We need to establish an orderly, coordinated process for determining court costs so that they are set at a level that provides citizens reasonable access to the courts. With few exceptions, they should be assessed for the operation and maintenance of the courts."
What do businesses have to do to be ready for electronic discovery under the new Federal Civil Rules? Must they take any steps, even if they are not involved in or anticipating any litigation?
"Companies will not have to alter how they retain their electronic documents, she said, but will have to do an “inventory of their IT system” in order to know better where the documents are." Companies Face New Rules on Keeping E-mails, Instant Messages by Associated Press, Globe and Mail.com, Dec. 1, 2006, quoting Martha Dawson, a partner at the law firm of Preston Gates & Ellis LLP who specializes in electronic discovery.
Attorneys must provide information on what electronic data is available, how it is stored and whether it is accessible, earlier in the lawsuit than ever before. IT departments have to be prepared to provide this information to attorneys quickly in case a lawsuit is filed. Companies should only retain information needed for a legitimate business purpose. Otherwise, the company will have too much stored information, and it will be too expensive to go through it all. See Are You Properly Preserving Your Electronic Documents?, Calfee, Halter & Griswald, 2006.
This article details the rule changes, with a link to the text of the rule changes: E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today by Preston, Gates, Ellis, LLP. Note the "safe harbor" provision, described by the article as follows: "This rule provides that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."
Instant messaging, voicemail and web-based e-mail should not be ignored, as these are discoverable too. E Discovery May Target Unexpected Sources by David Sumner and Damon Reissman, E-Commerce Law & Strategy, December 4, 2006.