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Winter 2015 Newsletter

witness costs after the rejection of a 998 offer to settle. This bill addresses the inequity in treatment of expert witness costs upon rejection of a settlement offer. It appears that in a 2005 non-controversial omnibus bill, the word "postoffer" was inserted into subdivision (d) of section 998 of the Code of Civil Procedure. This amendment created what appears to be an unintended inequity between defendants and plaintiffs relating to the discretionary authority of a trial court to award expert witness costs after one party’s rejection of a 998 settlement offer. Before AB 1141, if the plaintiff rejected a 998 settlement offer made by the defendant and failed to receive a better award at trial, the plaintiff could, at the court’s discretion, be required to pay the defendant’s preand post-offer expert witness costs. However, if the defendant rejected the plaintiff’s 998 settlement offer and failed to receive a more favorable judgment or award at trial, the court only had the discretion to order the defendant to pay the plaintiff’s postoffer expert witness costs. By removing the word "postoffer" from Section 998 (d) of the Code of Civil Procedure, AB 1141 allows both a plaintiff and a defendant to recover pre- and post-offer expert witness costs if the opposing party rejects a 998 settlement offer and receives a less favorable result at trial. The Assembly Judiciary Committee was unable to locate any materials indicating that the addition of the word "postoffer" to CCP Section 988(d) was intentional and was not aware of any reason why the Legislature would want to treat the parties differently in terms of their ability to recover expert witness costs if their good faith pre-trial settlement offers are rejected. This bill provides the remedy by equalizing the costs for both plaintiffs and defendants in 998 settlement situations. Jennifer N. Lutz focuses her practice in employment litigation and counseling. Jennifer represents California’s employers in all aspects of employment disputes in state and federal court, and before administrative and government agencies. For more info on Jennifer, click here.

The Revised Federal Rules of Civil Procedure: Proportionality is King By: André De La Cruz, Associate, Sheppard, Mullin, Richter & Hampton LLP

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s most federal practitioners are aware, certain amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. The underlying objective of this year’s amendments is to resolve cases more quickly, more fairly, and with less expense incurred. Specifically, Rules 26 and 37 were amended to rein in out-of-control expenses associated with the collection, processing, review, and production of electronically stored information (ESI). Historically, parties have engaged in the practice of over-collecting and over-producing electronic records comprising millions of pages—a very time consuming and expensive process when one takes into account the corresponding laborious review. Yet, in most instances, only a fraction of ESI produced in discovery is ultimately admitted into evidence. In addition, whether sound or not, many attorneys (in-house and outside counsel) turn over the responsibility of collecting potentially responsive files to someone in the organization who is not an attorney (e.g., custodian of records, etc.). This “self-collection” naturally results in “self-culling.” The Rules Committee has taken note of this tedious and taxing process and, as a result, has embraced efforts to address to bring consistency and efficiency to all new cases, and to a certain extent, cases pending as of December 1, 2015.1 Continued on next page…

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