For this year’s annual Federal Judicial Roundtable, 28 judges from multiple districts allowed practitioners the unique experience of discussing hypothetical cases with experienced judges. In this episode of The Florida Bar Podcast from the 2018 Annual Florida Bar Convention, host Renee Thompson talks to John Barkett about the event and topics of hypotheticals practitioners discussed, which ranged from document possession to draft expert reports.
John Barkett is a commercial and environmental lawyer with x.
The Florida Bar Podcast
2018 Annual Florida Bar Convention: 2018 Federal Judicial Roundtable
Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.
Renee Thompson: Hello and welcome to The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. This is Renee Thompson, recording from the 2018 Florida Bar Annual Convention in Orlando, Florida. Thank you so much for joining us today.
Joining me today I have John Barkett, and we are going to talk about the Federal Judicial Roundtable taking place here today at the Annual Florida Bar Convention. Welcome to the show John.
John Barkett: Thank you very much Renee. It’s a pleasure to be here.
Renee Thompson: Well, before we get into it, I would like our guests and our listeners to learn a little bit more about you. Could you tell us a little bit about your practice and what you do?
John Barkett: Sure. I practice with Shook, Hardy & Bacon. I am a partner in the Miami office. And my interest in federal litigation in part is derived from the fact that I have been litigating for 43 years as a member of the Florida Bar and in all the district courts in Florida and actually in district courts throughout the country.
But I also serve on the Advisory Committee on Civil Rules. Chief Justice Roberts appointed me to that seven years ago, so I have had the privilege of being heavily involved in the 2015 Rules Amendments that went into effect on December 1st of that year; probably the most significant Rules Amendment since the Civil Rules were adopted in 1938.
And I also have an ethical background. I serve on the ABA Standing Committee on Ethics and Professional Responsibility and I combined both my civil procedure knowledge and my ethics practice to develop some hypotheticals for the Judicial Roundtable today, where the judges sat at different tables with the practitioners. We went over the hypotheticals and then I gave explanations or analysis of each of the hypothetical.
So I drew on my background of 43 years of litigating and I also arbitrate and mediate cases in Florida and throughout the country and brought all that experience to bear in explaining the analyses of each of the hypotheticals.
Renee Thompson: Well, you have a very impressive background and we are so grateful for your time here today.
Some of the things our listeners might be interested in knowing is about this Federal Judicial Roundtable, if they have never been to it before, what could they expect when they attend?
John Barkett: So it’s held every year at the Florida Bar Convention and we had I believe 28 judges today from the Middle District, the Southern District and the Northern District, and there were judges spread out at every table and there was a table moderator and the judges actually rotated after every second hypothetical so that the practitioners got to meet several of the judges. It’s not often you have the opportunity to spend time with a judge in person.
So it was a great opportunity for the practitioners.
Renee Thompson: What a great environment.
John Barkett: It was great. I made it fun. I started off by doing some balloon animals on the clown on the side.
Renee Thompson: Now, you didn’t tell us that in your opening résumé.
John Barkett: No, I didn’t, I didn’t. Well, I did some clowning to start off to lighten the mood and then I ended with a little juggling routine where I ate an apple while I juggled it. In between we did a lot of law, a lot of law in between, so it was great.
Renee Thompson: You are a man of many talents.
John Barkett: It was great fun.
Renee Thompson: So the judges appear from all the different districts and they interact with the participants, with these hypotheticals, so tell us a little bit about the hypotheticals you drafted for this year’s roundtable.
John Barkett: Sure. So, the first one tested the issue of possession, custody or control. For Federal practitioners listening in, Rule 34 requires parties to produce responsive documents that are within their possession, custody or control.
So the hypothetical involved a domestic subsidiary of a foreign corporation and the question was whether or not the domestic subsidiary had control over the foreign parent’s documents when a requesting party in the domestic litigation in Federal Court was seeking parent level documents in response to the request for production?
So there are two cases in the Eleventh Circuit that are relevant and they address the two principles that are applicable throughout the country on when a party has control over a third party’s documents. Those two principles are the practical ability to obtain the documents or the legal right to obtain the documents.
In the Eleventh Circuit there is a case called Searock which established the legal right to control tests; that was decided many years ago, and then a couple of years ago there was a decision called Sergeeva involving a divorce between two Russian nationals and an effort by the wife to get documents from her husband’s companies where one of the companies was located in the United States, but the other companies were located outside the United States and the wife used the concept of control to get at the foreign affiliate’s documents.
Renee Thompson: Interesting.
John Barkett: And the Eleventh Circuit essentially said that the domestic company that the husband owned could not operate unless it had access to the foreign affiliate’s documents. And that being the case, the Lower Court decided there was control and the Eleventh Circuit affirmed.
So that the teaching point here is that at least in the Eleventh Circuit both tests may actually apply; the legal right to control under Searock and the practical ability to obtain under Sergeeva, I believe is the 2016 decision.
Let me just say, my email address is HYPERLINK “mailto:[email protected]”[email protected], if there is a case I mentioned and you are listening to this and you want a copy, shoot me an email, I will be happy to send you the paper I wrote for the program.
Renee Thompson: Great. Our listeners would really appreciate that.
John Barkett: That was a 48-page paper, quite robust, analyzing each of the hypotheticals, but that was one that generated quite a bit of discussion, but it’s a fascinating issue and in the global world we live in, the concept of control is becoming more and more significant in a production context.
Renee Thompson: I would think the issues of e-discovery come into some of these hypotheticals too?
John Barkett: Well, they do Renee, absolutely, because things can be transferred or transmitted so easily that if you are not disciplined, if you are on the producing party’s side and you represent domestic subsidiaries of foreign parents, you really need to be very disciplined in how documents get exchanged, very, very disciplined. To be sure that you maintain that separation that will allow you to say I have no legal right to obtain and I don’t have the practical ability to obtain. It doesn’t happen routinely between us, but it’s a scenario that folks have to pay attention to if they represent domestic subsidiaries that have affiliates in foreign countries.
Renee Thompson: Now, in the area of e-discovery I would think there would be — the issue of sanctions comes up quite a bit, if folks are not producing those electronic documents.
John Barkett: So we actually raised the question of then what we call the Incompetent Spoliator. So the hypothetical involved a party that intentionally deleted documents, but then forensic examination was ordered and all the documents were recovered forensically.
The question then is what do you do when there is an intent to deprive somebody of documents, but then they are located forensically? So that allowed me to discuss Rule 37(e), which went into effect on December 1 of 2015, and says the following, that if you have a duty to preserve and you fail to take reasonable steps to preserve and because you failed to take reasonable steps, you have lost Electronically Stored Information, because the rule only applies to ESI, not tangible evidence.
So you have a duty, you failed to take reasonable steps, you lost information and you couldn’t retrieve or restore the information, if all those factors are satisfied, then the court can, in the case of 37(e)(1), if there is prejudice, order corrective measures, but no more that is necessary to cure the prejudice. And then if there is an intent to deprive the other side of the use of the information in litigation, then the court can impose a significant sanction, like an adverse inference instruction or even a dismissal.
So we postulated the Incompetent Spoliator where the documents were actually recovered.
Renee Thompson: No intent.
John Barkett: Well, there was an intent, but failed to succeed and that’s why the hypothetical was so interesting and generated quite a bit of discussion. But the hypothetical was based on a decision, CAT3 from the Southern District of New York decided in January of 2016. Judge Francis where — those were actually the facts, the spoliator was incompetent. Rule 37(e) essentially was written to make sure we had uniform standards throughout America on culpability as they relate to a sanction.
So before Rule 37(e), in our circuit, the Eleventh Circuit bad faith was the standard, but in the Second Circuit negligence was the standard. So you could have a negligent loss of information in New York result in an adverse inference instruction, whereas in Miami or in any city in Florida, because there was no bad faith, there wouldn’t be a sanction. That’s not just.
Renee Thompson: It’s not uniform.
John Barkett: Not uniform, not just, so 37(e) cured that, made bad faith or the intent to deprive a uniform standard throughout the country, but for the Incompetent Spoliator, prior to 37(e) judges would rely on this doctrine of inherent power. All courts have inherent authority to protect the integrity of the process. We in 37(e) eliminated inherent authority, but where the spoliator didn’t succeed in CAT3 Judge Francis said I can still go back to inherent authority.
Renee Thompson: If I need it.
John Barkett: If I need it. And so the teaching point from the example is that if in fact the documents are recovered, very rarely by the way Renee, that that’s going to be the case.
Renee Thompson: I would think it would be hard to locate where they might be or the device that they were on.
John Barkett: You would be surprised what forensic examiners can do. Most people don’t understand that when you delete a document, it’s not deleted unless you fill the space in your hard drive that was formerly used to store the bites and bits of information that make up a computer file, unless you defragment your drive and you completely right over the space, the document is not deleted. Most people don’t understand that. That’s why forensic examiners can recover documents.
But in the case of the Incompetent Spoliator, likely that a judge will level the playing field in some manner, but we are looking for merits-based resolution of cases under 37(e). One of the goals of it was to not have sanctions control the outcome, to have the merits control the outcome, but to be sure that behavior that’s improper is also addressed, which judges have the power to do.
Renee Thompson: Interesting. So tell us, what was your favorite hypothetical discussion today?
John Barkett: Well, the issue of draft expert reports, very hot topic, because in 2010 the Federal rules were amended to make draft expert reports work product and therefore not subject to discovery and to make communications between attorney and expert also insulated from discovery as work product, but that’s the good news.
The bad news is that the case law that’s been coming down since 2010 has come in pairs and so lawyers need to be very, very mindful of their jurisdiction and any cases that have come down. They have to make sure that their experts are very well prepared for their depositions, that the lawyer is not drafting the report for the expert. The rule, Rule 26 provides that a lawyer that provides facts or data to the expert can’t insulate the facts or data from production and a lawyer that provides an assumption to the expert, where the expert relies on the assumption, that also is not protected from discovery, but short of that communications are insulated from discovery.
A lot of people were surprised today to learn however that when that expert talks to another person within the firm, the expert’s firm, or if there are two experts on one side and those two experts talk, those are not protected.
Renee Thompson: Wow.
John Barkett: And a lot of people were surprised at that, but when you think about it, it’s not a lawyer to expert communication; it’s an expert to expert communication.
So the case law has been pretty uniform that notes that an expert makes of communications with another expert, expert to expert conversations, internal expert company communications aren’t going to be protected.
Renee Thompson: Wow, some really interesting discussion today. Before we close with this last question I would love to know what’s the one takeaway you can give our listeners? What’s that one bit of information that you learned today or shared today that you think they would find of interest with regard to Federal practice?
John Barkett: Well, I didn’t mention Rule 502(d), but you need to read it, 502, Federal Rules of Evidence and you need to have a 502 paragraph in every discovery or case management order in your Federal cases and in your state cases, very important that you remember that. Read the rule and you will understand why, because it insulates an inadvertent production of a privileged document or work product protected document from being waived, if you have the right language in a 502(d) paragraph and a case management order.
Renee Thompson: Well, there you have it folks, you heard it here first. Before we close out, you did give your email, why don’t you go ahead and give it one more time for our listeners and the best way to give contact information so they can reach you about these topics.
John Barkett: Sure. It’s HYPERLINK “mailto:[email protected]”[email protected]. I am in the Miami office. Happy to have a dialogue, I am always interested in teaching, so don’t hesitate to contact me.
Renee Thompson: Thank you so much.
Well, this has been another edition of The Florida Bar Podcast, brought to you by The Practice Resource Institute on the Legal Talk Network. I want to thank our guest here today, John Barkett. And if you liked what you heard today, please find us and rate us in iTunes.
I am Renee Thompson with Upchurch Watson White & Max. And until next time, thank you so much for listening.
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