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Federal Practice Manual for Legal Aid Attorneys: 6.2.17 Reasonable Accessibility of ESI

Rule 26 creates a two-tiered approach to accessing ESI, by initially separating it into categories of “reasonably accessible” and “not reasonably accessible,” which in turn hinge upon a showing of “undue burden or cost.” The responding party “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”2586

Federal Practice Manual for Legal Aid Attorneys: 6.2.18 Cost-Shifting: Who Pays for the Production of “Inaccessible” ESI?

Under general discovery rules, apart from conditions that may attach to a protective order, “the presumption is that the responding party must bear the expense of complying with discovery requests….”2605 This presumption has been modified, though, in cases of discovery of ESI considered inaccessible due to significant expenses of access and production. The cost incurred by a responding party for accessing, retrieving, and producing ESI is now a primary factor reflected in the Rules.

Federal Practice Manual for Legal Aid Attorneys: 6.2.22 Shifting Costs of Discovery

Apart from the potential costs involved in discovery of electronically stored information, discovery in general can be expensive. Unless they can be obtained on a pro bono basis, depositions can entail significant court reporter’s fees, video recording costs, the fee of any expert whom you depose, and transportation and lodging for you to attend out-of-state depositions, or to bring a witness to the deposition.

Federal Practice Manual for Legal Aid Attorneys: 6.2.24 Motions to Compel and Sanctions

Although the Rules contemplate cooperative discovery, some lawyers unfortunately practice obstruction. Should you encounter late, incomplete, evasive, or ambiguous responses, or improper objections to discovery requests, you should write opposing counsel a demand for compliance, specifying a short time limit for a reply.2706 If a satisfactory reply is not forthcoming within your specified time limit, move under Rule 37(a)(3) to compel disclosures or discovery responses and, when appropriate, for sanctions.

Federal Practice Manual for Legal Aid Attorneys: 6.3.0 Introduction

Section 6.3 updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman, 2023 by Lisa J. D’Souza

To a great extent, federal litigation practice is a motions practice. Legal aid advocates involved in federal civil actions regularly file and respond to motions related to the discovery process as well as the substantive claims in the action. This Section discusses pretrial motions directed to the merits of the litigation.

Federal Practice Manual for Legal Aid Attorneys: 6.3.2 Local Rules

The Federal Rules of Civil Procedure are only the starting point here. It is critical that advocates also familiarize themselves with local rules of motion practice. If you are new to the district in which you are practicing, consult with senior attorneys in your office or program for advice on the sources of local written litigation procedure as well as the unwritten local customs and practices that judges and opposing counsel expect you to follow when filing motions.

Federal Practice Manual for Legal Aid Attorneys: 6.3.6 Memorandum in Support of Motion

The amount of factual detail and legal support necessary for a memorandum of law or brief depends on the nature of the motion involved, the anticipated position of the opposing party, and the expectations of the court. Most memoranda include a brief introduction to familiarize the court with the issues presented in the action and the specific motion, and to articulate the party’s theory of the case.

Federal Practice Manual for Legal Aid Attorneys: 6.3.7 Proposed Order

Generally, a motion should be accompanied by a proposed order granting the relief your client requests. Draft the proposed order such that if the judge executes it, it will provide your client all the relief sought in your motion. If you are seeking several forms of relief, set forth each request in a separately numbered paragraph. A thoughtfully prepared proposed order is itself an advocacy tool, and may create a framework for oral argument and for the judge’s consideration of your motion.

Federal Practice Manual for Legal Aid Attorneys: 6.3.8 Oral Argument

Under Federal Rule of Civil Procedure 78(b), a district court may decide to hear motions “on the briefs” without a hearing.2778 Usually the best practice is to request oral argument on any motion critical to your case. If your motion is complicated or if opposing counsel has made strong arguments, oral argument may be useful.

Federal Practice Manual for Legal Aid Attorneys: 6.3.10 Rule 15 Motion to Amend or Supplement

Federal Rule of Civil Procedure 15(a)(1) governs amending pleadings as a matter of course. It permits a plaintiff that has filed a complaint an opportunity to amend without leave of court within 21 days of service; or when a responsive pleading is required, within 21 days of the filing of the responsive pleading or 21 days after a Rule 12(b), (e) or (f) motion is filed, whichever is earlier.2794 In all other cases, the plaintiff may amend a pleading only with the court’s leave.

Federal Practice Manual for Legal Aid Attorneys: 1.3.1 Who is Your Client?

Part of the lawyer’s job is deciding who will be the client. A person who walks into your office with a grievance will not necessarily become your client in a lawsuit. In individual matters, questions may arise as to who the client is: The parent or the child? The leaseholder or the family member barred from the property? The guardian or the ward? These issues and potential conflicts must be addressed at the outset through careful legal, factual, and, occasionally, ethics research.

Federal Practice Manual for Legal Aid Attorneys: 6.4.2 “Sliding Scale” Approach to the Preliminary Injunction Factors

Prior to Winter, the circuits employed, to varying degrees, a “sliding scale” approach to balancing the preliminary injunction factors, whereby a stronger showing on certain factors could be balanced against a lesser showing on some other factor in determining whether preliminary relief should be granted.2839 As noted above, Winter overruled the Ninth Circuit’s application of the standard that allowed plaintiffs who demonstrated a strong likelihood of prevailing on the merits to receive a preliminary injunction based only

Federal Practice Manual for Legal Aid Attorneys: 6.4.3 Irreparable Injury

A demonstration of irreparable harm, along with a showing on the merits, is critical to obtaining preliminary injunctive relief.2855 Courts may in fact regard irreparable harm as the single most important factor warranting a preliminary injunction.2856 A strong showing of irreparable injury is frequently present in cases filed by legal aid attorneys.2857 For example, a loss of health care (e.g., Medicaid) services usually demonstrate