Another Judge Adapts Peter Vaira’s Proposed Amendment to Local Criminal Rule 32.3.2

As the result of Peter Vaira’s proposed amendment to Local Criminal Rule 32.3.2, Judge Timothy J. Savage of the Eastern District of Pennsylvania amended his own required procedures in 2011 to require both prosecution and defense counsel to serve each other with any material provided to the probation officer in the sentencing procedure.  Recently Judge Berle M. Schiller amended his procedure to follow Judge Savage’s requirements.  For a copy of the proposed amendment, or Judge Savage’s order, please e-mail p.vaira@vairariley.com.

The 2012 Edition Now Available

The 2012 edition of Eastern District Federal Practice Rules, Annotated, edited by Peter Vaira is now available for sale through the Gann Law Books website.  The URL is: http://www.gannlaw.com/onlinestore/main/cartAdd.cfm?book_no=15.  A purchase of the book provides an automatic interactive e-book access.  The book contains all rule amendments to October 24, 2011, and cases through 783 F. Supp. 2d 1353, and 275 F.R.D. 342.  The book includes extensive case annotations of the local civil and criminal federal rules (not found anywhere else), and an invaluable overview of the individual variations in practice and procedure among the Court’s Judges and Magistrate Judges as well as the Clerk’s Office Procedure Handbook.

This is a necessary workbook for anyone who has a case in the courts of the Eastern District.

Court Costs for E-Discovery

In an article published in the Legal Intelligence on November 8, 2011, Peter Vaira discussed the recent decision In Re The Aspartame Antitrust Litigation.  In an order issued by Judge Legrome Davis, the Court upheld $510,137 in court costs to the prevailing party, mostly for e-discovery costs.  See In Re Aspartame Antitrust Litigation, 06-cv-1732 Order, October 5, 2011.

The court awarded costs for various e-discovery procedures which have been given a variety of interpretation by various federal district and circuit courts.  The extent of the discovery was described by the court as “staggering”.  Judge Davis’ ruling is sure to offer guidance in future litigation on such issues.  For a copy of Peter Vaira’s article please email p.vaira@vairariley.com.

For a complete discussion of court costs awarded to the winning party see Vaira, Eastern District Federal Practice Rules, Comment on Local Civil Rule 54.1 (Gann Law Books).

The Luzerne County Corruption Case and the Media

Peter Vaira is the moderator of a program presented at the Pennsylvania Association of Criminal Defense Lawyers on November 20, 2011 on the Luzerne County corruption cases and the media at the Ritz Carlton Hotel, Philadelphia.  Panelists are Hank Grezlak, editor of the Legal Intelligencer and Joel Slobodzian, court reporter for the Philadelphia Inquirer.  The panel will discuss mistakes defense counsel have made in statements to the press during the investigation of the Luzerne County federal investigation.

The program is part of a two day program given by PACDL on November 19 and 20, 2011.  For a complete program contact p.vaira@vairariley.com.

Litigation Costs to Prevailing Party

On September 13, 2011, Peter Vaira published an article in the Legal Intelligencer, Litigation Costs to the Winning Party.  The article discusses the costs that the Clerk of Court may award to the prevailing party pursuant to Local Civil Rule 54.1.  Vaira discussed the recent case of Aspartame Antitrust Litigation, 06-cv-1732 in which the Clerk awarded costs of $576,058 to the defendants in a class action suit.  For a copy of the article with the complete citations contact p.vaira@vairariley.com .  The costs in Aspartame have been appealed to the district court.  The blog will report the court’s decision.

Proving Foreign Law

On July 12, 2011, Peter Vaira published an article in the Legal Intelligencer on proving the Law of a Foreign Country in Federal Court and International Arbitrations.  The subject is governed by Rule 44.1 of the Federal Rules of Civil Procedure.  The rule gives wide discretion to the trial judge who may use numerous methods to ascertain the law of the foreign country.  Judges and practicing attorneys agree that the most effective method of proving the law of a foreign country is through the testimony of an attorney practicing in that country.  Vaira included the advice of attorneys who practice international law regarding how to select an expert.  For a copy of the article with complete legal citations contact p.vaira@vairariley.com.

Sample Motion for Mutual Disclosure of Material Submitted to the Probation Officer for Sentencing

Presently, Local Criminal Rule 32.3.2 of the Eastern District of Pennsylvania provides that when a sentencing date is fixed, the attorney for the government will make available to the probation officer all investigative and file material relevant to the case.  There is no requirement in the Rule that this material be provided to the defense counsel.  Quite often it is not, with defense counsel often being surprised by the probation officer’s report.  There is no reason that such material should not be provided to the defense counsel.  Likewise, there is no reason government counsel should not see the material defense counsel provides to the probation officer.

The Local Criminal Rules of the Northern District of Illinois require mutual disclosure by all parties of all material presented to the probation officer.  Peter Vaira has proposed an amendment to Rule 32.3.2 which provides mutual disclosure between counsel of all material presented to the probation officer.  Peter Vaira has been told such an amendment is under consideration.  Judge Savage, on his own initiative, requires such disclosure in his Practices and Procedures.  Until an amendment is adopted, set forth below is a sample motion to be filed by defense counsel at sentencing or immediately following sentencing.  The motion is also applicable for the Middle and Western Districts of Pennsylvania, which have no requirement of mutual disclosures.

Defense counsel hereby requests that the Court enter the following order: Counsel for the government and defense counsel are directed to provide opposing counsel with copies of all material and pleadings provided to or served on the probation officer in this matter.  In the event a witness is made available to the probation officer for interview, that witness should also be made available to opposing counsel for an interview as to the substance of the information provided to the probation officer.

Judge Michael M. Baylson Construes Local Civil Rule 53.2(7)

Local Eastern District Civil Rule 53.2(7) provides that following an arbitration award, upon demand for a trial de novo, the case shall be placed on the trial calendar of the court and treated for all purposes as if it had not been referred to arbitration.  Local Rule 53.2(6) provides that in a case involving multiple claims and parties, any segregable part of the award for which a trial de novo has not been sought shall be part of final judgment as if it is a final judgment of the District Court in a civil action.

In Ramos v. Quien, 08-2952 (Memorandum Regarding Trial De Novo and Motions to Disqualify and Summary Judgment, June 20, 2011), there was a malpractice award in favor of the plaintiff, Ramos against Quien, one of the defendants.  There was an award in favor of all other defendants.  Quien, the defendant sought a trial de novo on his own liability, but not as to the other defendants.  Ramos the plaintiff contended there should be a trial de novo against all defendants.  Judge Baylson ruled that the Rule 53.2(6) provision of partial trial de novo on segregable parts applied only where there were multiple parties and multiple claims.  Judge Baylson found there were only multiple parties, although the claims were based on different theories as to each defendant.  Judge Baylson ruled the 28 U.S.C. § 657(c)(2) applied, which requires that the case proceed as if arbitration had not occurred.  He also ruled Quien’s counsel could represent all defendants at the trial de novo.

Judge Baylson discussed at length the history of Local Rule 53.2 and favorably cited Peter Vaira’s book, Eastern District of Pennsylvania Federal Practice Rules Annotated, Gann Law Books, 2011 Edition.

Magistrate Judges as Candidates for District Court

In his regular column on November 9, 2010 for the Legal Intelligencer Peter Vaira proposed that Magistrate Judges be considered for appointment to the federal district court bench.  To date no magistrate judges have been appointed to the Eastern District bench.  Vaira gave a history of the expansion of the powers of the Magistrate Judges, and the history of their acceptance in the Eastern District.  Vaira cautioned that the magistrate judge bench should not be the only source of candidates for the district bench, as that practice would exclude experienced trial lawyers and state trial judges.

For a full text of this article see http://www.vairariley.com/CM/Custom/Magistrate-Judges-As-Candidates.asp

Local Criminal Rule 32.3(2) Under Consideration for Amendment

The District Court for the Eastern District of Pennsylvania is considering a proposed amendment to Local Criminal Rule 32.3(2).  The amendment was proposed by Peter Vaira in his column in the Legal Intelligencer on May 11, 2010.  Judge Savage of the Eastern District on his own motion has adopted the amendment in his Practices and Procedures.  The proposed amendment is as follows:

Rule 32.3 . . .

2.   At the time the presentence investigation and report are ordered, a sentencing hearing date will be fixed by the sentencing judge. The attorney for the Government will make available to the probation officer all investigative and file material relevant to the case.  The attorney for the government will provide to the probation office all investigative and file material relevant to offense and the defendant’s relevant conduct, and any material relevant to the adjustments to the sentencing guidelines.  The attorney for the government will provide to the defense counsel all material provided to the probation officer, including any legal memoranda regarding sentencing.  Within 21 days of receiving the material from the attorney for the government, the defense counsel will provide to the government attorney all material and legal memoranda defense counsel has submitted to the probation officer.

The court, in its discretion, may grant defense counsel’s request for additional material from the government relevant to sentencing, based upon a showing of particularized need.  The sentencing hearing date may be continued if necessary.”