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Federal Practice Manual for Legal Aid Attorneys: 2.8.14 The “Parallel” Requirement

Colorado River abstention is inapplicable unless there is parallel litigation.527 Thus, generally, in the absence of simultaneous proceedings that are sufficiently parallel, the abstention factors (discussed below) should not be reached. The Circuits have used different analyses to determine whether parallel proceedings exist, which are summarized below.

Federal Practice Manual for Legal Aid Attorneys: 2.8.16 Colorado River And Declaratory Judgment Actions

The Supreme Court held in Wilton v. Seven Falls Co., a diversity action, that a standard of substantial discretion, rather than the Colorado River “exceptional circumstances” standard, governed a district court’s decision to stay a declaratory judgment action on grounds of a parallel state court proceeding.572 This discretion is conferred upon the federal courts by the permissive language of the Declaratory Judgment Act.573 The Court reaffirmed Brillhart v.

Federal Practice Manual for Legal Aid Attorneys: 2.8.18 The Rooker-Feldman Doctrine

Because lower federal courts do not have appellate jurisdiction over state courts, the Supreme Court refuses to permit losing state court litigants to invoke federal jurisdiction to attack state court judgments on the ground that the state court acted unconstitutionally.581 This doctrine, often referred to as the Rooker-Feldman doctrine, originated in Rooker v. Fidelity Trust Co.582 The Supreme Court reaffirmed the doctrine in District of Columbia Court of Appeals v.

Federal Practice Manual for Legal Aid Attorneys: 6.0 Introduction

Without intending to be comprehensive, this Chapter discusses a variety of procedural issues related to litigation and trial practice, roughly in the chronology of litigation. First, the Chapter deals with conferences and scheduling, including the role of magistrate judges. Second, the Chapter reviews informal and formal methods of discovery, including mandatory initial disclosures and conferences involving discovery issues. Mechanics, strategy, and practice pointers are included.

Federal Practice Manual for Legal Aid Attorneys: 6.1.2 Practice Pointers for the Rule 26(f) Meeting of the Parties

Use the Rule 26(f) meeting of the parties to shape discovery to your advantage and to pry information from opposing counsel. Before the conference, send opposing counsel a letter that (1) identifies evidentiary issues relating to electronically-stored information (ESI) and states that you expect opposing counsel to be familiar with the defendant’s ESI; and (2) includes a draft of the joint report of the meeting of the parties that the parties are required to file with the court pursuant to Rule 26(f)(2).2241

Federal Practice Manual for Legal Aid Attorneys: 6.1.3 The Timing and Location of the Rule 26(f) Meeting of the Parties

Unless otherwise ordered by the court, the parties must “confer” at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).2242 The judge must normally issue a scheduling order “as soon as practicable,” but in any event by the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared.2243 The parties’ counsel may meet in person, by Zoom, phone, or even by email exchange, unless the court order

Federal Practice Manual for Legal Aid Attorneys: 6.1.7 Developing your internal discovery plan

Successful discovery requires that you identify what you must prove as early as possible. Your internal discovery plan should therefore identify the facts that you must prove, the discovery tools most likely to assist in proving those facts, and a sequence for using the various discovery tools. As you accumulate information, you must maintain a carefully organized file that shows both the content and the source of every document. You should also develop a tool for ascertaining the admissibility of every document upon which you plan to rely.

Federal Practice Manual for Legal Aid Attorneys: 6.1.8 The Rule 26(f) Report of the Parties’ Conference

Pursuant to Rule 26(f)(2), the parties are required to file a report with the court a report of their Rule 26(f) meeting, unless the court orders otherwise. As noted above, Rule 26(f)((2) and (3) set forth the issues that the parties must discuss at this meeting, and the parties must also discuss any other matters as required by the court’s local rules or the court’s order for conference and address them in their 26(f) report.

Federal Practice Manual for Legal Aid Attorneys: 6.2.1 The Scope of Allowable Discovery

The Federal Rules of Civil Procedure specify the general parameters of allowable discovery in a lawsuit. (Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015, significantly changed Rule 26(b), in particular the definition of “relevance.” This chapter will be updated accordingly, but in the meantime, advocates are advised to review these changes.) Rule 26(b)(1) specifies the following, “unless otherwise limited by court order”:

Federal Practice Manual for Legal Aid Attorneys: 6.2.4 Interrogatories

Interrogatories can be directed only to other parties, who then have thirty days to respond.2347 Interrogatories propounded on one party must be served on each party, unless the court orders otherwise.2348 Filing discovery requests and responses with the court is prohibited, except in connection with pretrial motions or at trial or the court orders filing.2349 Examples are attachments to motions to compel, for protective orders, or for summar

Federal Practice Manual for Legal Aid Attorneys: 6.2.5 Requests for Production of Documents

Federal Rule of Civil Procedure 34(a) permits a request from an opposing party to “produce and permit the requesting party or its representative to inspect, copy, test, or sample” documents, including electronically stored information, as well as “tangible things” that are in the responding party’s “possession, custody or control.” Generally, the responding party may either produce requested documents or permit them to be inspected and copied.

Federal Practice Manual for Legal Aid Attorneys: 6.2.6 Requests for Admission

Requests for admission issued pursuant to Federal Rule of Civil Procedure 36 are a useful but often underutilized tool. They are written requests for the admission of “the truth of any matters within the scope of Rule 26(b)(1)” for purposes of the pending action only.2400 These matters include: “facts, the application of law to fact, or opinions about either . . .

Federal Practice Manual for Legal Aid Attorneys: 6.2.7 Depositions

Federal Rule of Civil Procedure 30 permits a party to take an oral deposition under oath of any person, including individuals who are not parties. A deposition is, in essence, a conversation between an attorney and a witness that probes his or her knowledge, perceptions, understandings and opinions about the case under oath. A deposition may have two functions: to discover facts and opinion and to preserve testimony for trial. The latter is known as a de bene esse deposition and is governed by Federal Rule of Civil Procedure Rule 32.

Federal Practice Manual for Legal Aid Attorneys: 6.2.8 Deposition Practice and Strategy

In preparing for a deposition, begin by defining your objectives. Is your primary goal: (1) to determine what the witness knows; (2) to establish a basis for impeaching the witness at trial; (3) to learn the details of the adversary’s case in order to prepare better to rebut it’ (4) to commit the witness to testimony favorable to your position for a record for summary judgment? Whatever your goal, you should prepare for the deposition by outlining a series of questions or areas of inquiry, checking off each question or area as you cover it.

Federal Practice Manual for Legal Aid Attorneys: 6.2.9 Defending Depositions and Preparing Witnesses

Four key steps in preparing your witness to be deposed are: (1) review your entire file, including pleadings and prior deposition transcripts, to anticipate questions that the witness will be asked; (2) meet with the witness to review the deposition process, including the preliminaries and breaks, and the facts and documents about which you expect her to be asked, including the most difficult issues that are likely to be covered; (3) conduct a mock cross-examination of the witness. Try to keep this practice session as formal as possible, with a person acting as a court reporter.