Judge Lynn To Become New Chief Judge Of The Northern District of Texas

With Chief Judge Solis’ retirement, Judge Barbara M.G. Lynn will become the Northern District of Texas’ Chief Judge, effective May 1, 2016. Congratulations Chief Judge Lynn!

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New Federal Rules

On December 1, 2015, the Federal Rules of Civil Procedure were amended (the amendments are here and a redline showing the changes from the prior version of the Rules is here). Here’s a quick summary of what I believe to be the most important amendments:

Rule 1: Rule 1 has been amended to indicate that the parties, as well as courts, have an obligation to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 4: Rule 4 has been amended to indicate that a defendant must generally be served with process within 90 days after the complaint is filed (shortened from 120 days).

Rule 16: The time for the Court to typically issue a scheduling order has been shortened from

the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared

to

the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

Further, the Rule has been amended to indicate that the scheduling order may provide for the preservation of electronically stored information and that, before moving for an order relating to discovery, the movant must request a conference with the Court.

Rule 26: In probably one of the most significant changes to the Rules, Rule 26 has been amended to provide that, unless otherwise limited by court order, discovery must be not only relevant to a party’s claim or defense, but also “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The Court must limit discovery if it determines that the proposed discovery is outside the scope of the foregoing.

The Court now has explicit authority to allocate expenses regarding discovery when entering protective orders.

Additionally, the following sentence has been stricken from the rules: “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” The Advisory Committee Notes indicate that this provision “is rarely invoked” and that “[p]roportional discovery relevant to any party’s claim or defense suffices, given a proper understanding of what is relevant to a claim or defense.” The Notes also indicate that the three examples of discovery “relevant to the subject matter” of the case provided by the 2000 Notes—i.e., “other incidents of the same type, or involving the same product”; “information about organizational arrangements or filing systems”; and “information that could be used to impeach a likely witness”—are not foreclosed by the current amendment.

My prediction is that these changes to Rule 26 will increase discovery disputes (e.g., whether the discovery is “proportional to the needs of the case” as opposed to simply relevant), requiring more Court intervention. Perhaps this will not be the case, however, as courts were always free to consider the “proportionality” factor when ruling on a motion to compel or a motion for a protective order.

Rule 26 also now permits “early Rule 34” document requests, which are designed to assist the parties focus discussion during the Rule 26(f) conference. Specifically, “[m]ore than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.” However, any such discovery request “is considered to have been served at the first Rule 26(f) conference.”

Rule 26’s contemplated discovery plan now requires the parties’ views and proposals on any issues about “preservation” of electronically stored information.

Rule 34: There are two major changes to Rule 34, dealing with document requests. First, the party responding to the document requests must complete its production of documents “no later than the time for inspection specified in the request or another reasonable time specified in the response.” Per the Advisory Committee Notes, when documents must be produced in stages, “the response should specify the beginning and end dates of the production.”

Second, an objection to a document request “must state whether any responsive materials are being withheld on the basis of that objection.” The Advisory Committee Notes indicate that a responding party may include an objection that contains “a statement that the responding party will limit [its] search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources.” If such an objection is made, “the statement of what has been withheld can properly identify as matters ‘withheld’ anything beyond the scope of the search specified in the objection.”

Rule 37: Rule 37 has been rewritten, and now addresses the preservation and loss of electronically stored information:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Rule 84: Rule 84, previously stating that “[t]he forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate”, has been abrogated. There are no longer any forms.

Appendix of Forms: Abrogated.

The amendments govern all proceedings commenced on or after December 1, 2015, and all proceedings pending on that date “insofar as just and practicable.”

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President Obama Nominates Three To Serve On The United States District Court For The Northern District of Texas

Yesterday, President Obama nominated Northern District Magistrate Judges Frost and Ramirez to serve as U.S. District Court Judges for the Northern District of Texas. President Obama also nominated James Wesley Hendrix, of the United States’ Attorney’s Office, to serve as a Northern District Judge. According to the White House’s press release, with respect to Judge Frost:

Judge E. Scott Frost has served as a United States Magistrate Judge for the United States District Court for the Northern District of Texas since 2011.  In addition, he has served on the Operations Committee for the court since 2013.  Prior to his appointment as a Magistrate Judge, Judge Frost served as an Assistant United States Attorney for the United States Attorney’s Office for the Northern District of Texas from 1990 to 2011.  From 1988 to 1990, he worked as an associate for the law firm of McLean, Sanders, Price, Head & Ellis (now Brackett & Ellis, PC).  Judge Frost began his legal career as a law clerk to the Honorable Sam R. Cummings of the United States District Court for the Northern District of Texas from 1987 to 1988.  He received his J.D. from Texas Tech University School of Law in 1987 and his B.B.A. from Angelo State University in 1984.

With respect to Judge Ramirez:

Judge Irma Carrillo Ramirez has served as a United States Magistrate Judge for the United States District Court for the Northern District of Texas since 2002.  Prior to her appointment to the court, she served as an Assistant United States Attorney for the United States Attorney’s Office for the Northern District of Texas, working in the Civil Division from 1995 to 1999 and the Criminal Division from 1999 to 2002.  Judge Ramirez began her legal career working as an associate for the law firm Locke Purnell Rain Harrell, PC (now Locke Lord LLP) from 1991 to 1995.  She received her J.D. from Southern Methodist University School of Law (now Southern Methodist University Dedman School of Law) in 1991 and her B.A. from West Texas State University (now West Texas A&M University) in 1986.

And with respect to Mr. Hendrix:

James Wesley Hendrix has been the Chief of the Appellate Division for the United States Attorney’s Office for the Northern District of Texas since 2012, and he has served as an Assistant United States Attorney since 2007.  Since 2015, he has also served on the Appellate Chiefs Working Group for the United States Attorney General’s Advisory Committee.  From 2004 to 2007, he was an associate at the law firm of Baker Botts LLP, practicing complex commercial litigation in state and federal courts.  Hendrix began his legal career as a law clerk to the Honorable Patrick E. Higginbotham of the United States Court of Appeals for the Fifth Circuit.  He received his J.D. with high honors from the University of Texas School of Law in 2003 and his B.A. with honors from the University of Chicago in 2000.

Congratulations to Judges Frost and Ramirez, and Mr. Hendrix, for this great achievement!

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Judge Robinson Announces Change To Senior Status

Last month, Judge Robinson announced she would take senior status effective February 3, 2016. Judge Robinson has served for more than 60 years as a judge, including 35 years as a judge on the Northern District of Texas. Congratulations to Judge Robinson, and thank you for your public service! (The Northern District’s press release concerning Judge Robinson’s announcement is here.)

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Chief Judge Solis To Retire in May 2016

It has recently been reported that Chief Judge Solis intends to retire in May 2016. The Chief Judge’s retirement will create four judicial vacancies in the Northern District of Texas.

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Judge Lynn Denies Motion to Stay Case Pending Ex Parte Reexamination

On December 18, 2015, Judge Lynn entered an Order (available here) rejecting the defendant’s request to stay the case pending resolution of its ex parte reexamination petitions for six of the eight patents-in-suit. The Court noted that the parties were direct competitors and that it was speculative whether a stay would simplify the issues. Because none of the relevant stay factors weighed in favor of a stay, the Court denied the defendant’s motion to stay.

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What’s A Reasonable Hourly Rate For A Copyright Litigator? Hint: Not $595/Hour According To Judge Boyle

On January 14, 2016, Judge Boyle issued an Order (available here) in Spear Marketing v.  BancorpSouth Bank ruling on the prevailing defendants’ requests for attorney’s fees. The Court found that the defendants were entitled to attorney’s fees under the Texas Theft Liability Act or, alternatively, the Copyright Act. However, Judge Boyle refused to award the defendants the amounts they requested.

More specifically, Defendant Argo sought $1,190,255 in attorney’s fees, and Defendant BancorpSouth sought $711,422.74.

Argo’s requested (2015) rates ranged from $595/hour for its senior principal partner to $261/hour for its (apparently, most junior) associate. Argo requested $261/hour for its paralegals’ time.  Judge Boyle found that Argo’s requested rates were not reasonable:

[T]he Court finds that [Argo’s firm’s] hourly fees charged are unreasonably inflated. Other district courts in the Northern District of Texas have found reasonable hourly rates for copyright litigation attorneys of comparable skill, experience, and reputation to range from $100 to $400 dollars. . . . Generally, fee awards for rates above $500 per hour are reserved for specialized tasks in complex cases that few attorneys are capable of handling. As for paralegals, reasonable rates range between $60 and $125 per hour.

(citations and quotations omitted).

The Court decided to “adhere to a general rate of $150 to $400 per hour for attorneys and $100 per hour for paralegals”, selected a “general rate” of $300/hour for partners (with the exception of $400/hour for Argo’s senior principal partner), $200/hour for associates, and $100/hour for paralegals. Applying these rates to the number of recoverable hours resulted in an award to Argo of $604,715—about half of what it had requested.

Defendant BancorpSouth’s firm “provided a twenty-percent discount to their standard rates lowering their rates to the range ‘from $200.00 to $228.00 for paralegals, $212.00 to $296.00 for associate attorneys, $476.00 to $532 for partners, and $748 for senior partners[.]” The Court again found that the hourly rates were not reasonable, and that the time spent on the case by Defendant BancorpSouth’s firm was “slightly excessive” resulting in a 20% reduction in the hours billed by the firm to be used when calculating the fee award. For Defendant BancorpSouth’s firm’s rates, “the court select[ed] a general rate of $250 per hour for partners, $150 per hour for associates, and $100 per hour for paralegals and legal assistants.” These rates were lower than the allowable amounts for Defendant Argo’s firm because Defendant BancorpSouth’s firm “did not act as lead counsel in this matter.” The Court ultimately awarded Defendant BancorpSouth $325,106 in attorney’s fees—again, approximately half of what it had requested.

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Judge McBryde Tosses Purported Class Action Against Texas Wesleyan and Texas A&M

On January 14, 2016, Judge McBryde entered an Order (available here) that dismissed the first amended complaint filed by plaintiffs in a purported class action lawsuit against Texas Wesleyan and Texas A&M. Plaintiffs, graduates of Texas Wesleyan School of Law, graduated from law school prior to Texas A&M purchasing the assets of Texas Wesleyan School of Law from Texas Wesleyan in 2013.

“Plaintiffs allege that after A&M acquired the assets of TWU Law and began the operation of Texas A&M University School of Law, the A&M Defendants refused to recognize them as A&M Law graduates.” Apparently, the plaintiffs wanted to be able to list themselves as Texas A&M law graduates and have Texas A&M issue them new diplomas—i.e., “[a]t best, plaintiffs wish that Wesleyan Defendants had done something to assure that A&M would acknowledge them as graduates.”

Judge McBryde found that the first amended complaint failed to state a claim, and rejected all of the plaintiffs’ claims.

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Federal Civil Practice Seminar To Be Held On January 20, 2016 at the Belo

The 30th Annual Federal Civil Practice Seminar (“What Every Lawyer Should Know Before Entering Federal Court”) will be held this Wednesday, January 20, 2016, at the Belo. It should be a great event. The keynote speaker is Judge Kenneth Starr, and the Presenters/Panelists will be Judge Douglas Lang; Judge Scott Brister; Hon. William Royal Furgeson, Jr.; Prof. Fred Moss; Derek Dickinson (AT&T); Jennifer Wells (Ericsson); and Brian Jobe (ARGO Data). The event will provide 5 hours of CLE credit (including 2 hours of ethics). More information can be found here.

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Northern District Implements Two Modifications Affecting The Electronic Record on Appeal

The Clerk of the Northern District of Texas recently announced that, “[u]nder the direction of the Fifth Circuit Court of Appeals, the Northern District of Texas has implemented two key modifications that will impact the electronic record on appeal.”

Specifically, with respect to hearing/trial exhibits:

The Fifth Circuit requires the electronic record on appeal to include all exhibits that were admitted into evidence in a trial or other proceeding. ECF users must transmit copies of their proffered exhibits that were admitted into evidence in the district court case through ECF within 14 days of the date the notice of appeal was filed. A specific ECF docket event has been created for exhibits that are not sealed, and instructions for uploading both public and sealed exhibits into the district court case can be found here: http://www.txnd.uscourts.gov/exhibit-guide.

With respect to accessing the record on appeal:

After the district court notifies the parties that the electronic record on appeal has been certified, attorneys will be able to access a copy of the paginated record on appeal through the Fifth Circuit’s ECF system rather than on a disk provided by the district clerk. The record will contain only the public documents, and, if the appeal is of a criminal judgment, the presentence investigation report and related materials. The district court may only release sealed portions of the paginated record upon order of the Fifth Circuit.

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