SYLLABUS- ADVANCED CIVIL PROCEDURE Summer 2009 Class time- Tues and Thurs 5:15-7:45 Room Adjunct Professor

Che Williamson, J.D, L.L.M, Ph.D Cell 832-746-7955 Office 1-866-281-0464 Email chedatty@aol.com DESCRIPTION: OBJECTIVES 1. Students will gain an understanding of issues in Federal Procedure as it relates to complex litigation, including class actions, mass torts, and security litigation. The material will cover new rules regarding electronic discovery and electronic filing requirements in federal court. 2. Students will gain an understanding of Multi District Litigation, and the Complex Guide to Multi District Litigation including how cases are selected for transfer to an MDL, and how pretrial motions and discovery are coordinated. Students will also learn how a court determines who serves as the Plaintiffs Steering Committee, and how attorneys fees are allocated and determined. 3. The student will gain a general understanding of recent changes in Federal Civil admissibility of scientific and expert testimony in the courtroom, and issues regarding summary judgments, motions in limine and other pretrial strategy including how complex cases are tried or settled. I will assume that all students very familiar with the Federal Civil Rules of Procedure. You should always have youre the Federal Rules of Procedure and Federal Rules of Evidence at hand in class for discussion. I suggest the West Manual because it has all of the Rules of Procedure, Rules of Evidence and MDL Rules that are relevant.

TWEN: ALL COURSE MATERIAL NOT FOUND IN THE BOOK WILL POSTED ON TWEN. PLEASE REGISTER AND ACCESS THE CLASS WEBSITE PRIOR TO CLASS. ALL MATERIAL FOR THE CLASS SHOULD BE POSTED BY MONDAY, MAY 23, 2009 TEXTS: (REQUIRED) Complex Litigation 4th Edition, West, (2004) Sherman and Marcus West Rules Of Civil Procedure Student edition which has Federal Rules of Procedure, Evidence and the MDL Rules (you can download these materials but it will be easier for exam purposes to have one manual that you can mark and highlight, and has all of the relevant rules and statutes. (May be downloaded through Westlaw) Federal Complex Litigation Guide 4th Edition, Federal Judiciary Center (Can be down loaded through Westlaw or the Federal Judiciary Center website) Current Federal Rules of Procedure (Refer to assignments) Current Federal Rules of Evidence RECOM MENDED: The Nutshell Series Class Actions is very good for a concise explanation of the procedures for filing class actions, getting the case certified, and settlement. Also Students will have supplementary materials that can be downloaded through Westlaw or via other Internet cites as assigned by the Professor. I will post class power points on TWEN. OFFICE HOURS I am always accessible by email and can meet by appointment anytime on Tuesday, Wednesday or Thursday. GRADING: The final exam will be three hours long. It may consist of essay, short answer, and possibly multiple-choice questions. The final will be worth a total possible 100 points. 90 -100 80-89 70-79 65-69 Below 65 Points A Points B Points C Points D Points F

EXAMINATION Failure to take the exam on the day it is given result in a grade of 0. Exceptions may be made to this policy within the instructors discretion for extreme emergencies or circumstances. ACADEMIC INTEGRITY AND HONESTY Academic dishonesty cannot be condoned or tolerated in the University Community... Any student found guilty of committing an academic offense on the campus or in connection with institution oriented or sponsored activity, or while representing the University or academic department will be disciplined by the University. The Most common offenses subjecting a student to grade penalty or disciplinary action are: Cheating: (The following are a few examples of acts of cheating Copying from another student paper Using prepared materials, notes, texts or other than those specifically permitted by the professor during the exam Collaborating with another student during the exam Buying, selling, stealing, soliciting, or transmitting an examination, or any material purported to be the unreleased content of an upcoming examination or the use of such material Substituting another person during an examination or allowing such substitution for oneself Bribing a person to obtain examination information Please refer to the UALR Student Handbook for all University Policies and Procedures concerning honesty and integrity, which will be rigorously enforced in this course. Any person found to be in violation of the Academic Honesty Policy of the University will be referred to the Department Chairperson for formal proceedings and the instructor will file an Academic Offense Allegation Report reporting the act of dishonesty. The student further action as described in the UALR Student Handbook, which may be obtained from the Office of the Dean of Students or online at http://www.ualr.edu/provost/.

DISABLED STUDENT POLICY It is the policy of UALR to accommodate students with disabilities, pursuant to federal and state law. Any such student who need accommodation, for example in seating placement, or in arrangements for note-taking, examinations, or access to information on the web, should inform the instructor at the beginning of the course. The Chairperson of the department offering this course is also available to assist with accommodations. Students with disabilities are also encourages to contact the Office of Disability Support Services located in Donaghey Student Center 103, telephone 501-5693143 (v/tty) and on the web at http://www.ualr.edu.dssdept ATTENDANCE, PARTICIPATION and PREPAREDNESS All students are expected to have read and be prepared for class including reciting or discussion of any course assigned material. There will be a lot of discussion in class about current problems in mass tort litigation to prepare students for the final and practicing law in the mass tort arena. Failure to fully be prepared and participate will affect your ability to do well on the final, since it may be based on a lot of in class discussion and lecture outside of the reading assignments. Seven hours of absence are permitted. Anyone with more than seven hours absence will receive an F for the course grade. Anyone who is repeatedly unprepared for class may have his or final grade lowered by on level. COMPUTER POLICY IN CLASS: If I become aware or suspect that you are misusing your computer, I will require you to close it for the rest of the class period, or leave class. Inappropriate purposes include playing computer games, or music, sending and receiving email, or using your computer for any purpose other than accessing class material and taking notes. Please make sure your computer and cell phones are muted during class!

COURSE OUTLINE AND ASSIGNED READING: May 26- Introduction to Advanced Civil Procedure. Resolving the Class Action Crisis: Mass Tort Litigation as Network 2005 U.L.R. 863 posted on website Review Chapter 1 in the Marcus and Sherman Book We will go over the syllabus which will always be posted on the website. May 28 Federal vs. State Court in Mass torts; Joinder in Federal Court, Removal to Federal Court, Multi District Litigation Courts Assignment: Additional Cases Grant v. Salem 226 F.R.D. 1 (D.D.C. 2004) Marcus & Sherman Chapter II A. Hall v. DuPont Notes and Questions Page 43 B. Compulsory Party Joinder The Rule 19(b) Determination Supplemental Jurisdiction Federal Rule of Procedure: Joinder, Permissive and Compulsory Joinder, Rules 13, 18, 19, 20 and 21 Removal to Federal Court and Federal Jurisdiction under 28 USCA 1331 & 1332 June 2 Dual Proceedings in Federal and State Court- What is a Multi District Litigation Court and how does it Work?; Transfer to an MDL, Pretrial Consolidation, Forum Non Conviens Motions Additional Cases Koresko v. Nationwide Life Ins. Co. 403 F. Supp. 2d 394 (E.D. Pa. 2005) In re High Sulfur Content Gasoline Products Liability Litig, 344 F. Supp. 2d 755 (J.P.M.L. 2004)

In re Bextra and Celebrex Marketing Sales Practices Litig. 391 F. Supp. 2d 1377 (J.P.M.L. 2005) Assignment: Chapter III-Disposition of Duplicative or Related Litigation A. Multiple Proceedings in Federal Court (all) Complex Litigation Guide: Part II; Special Problems: 22. Mass Torts 22.1-22.9 June 4- Dual State and Federal Proceedings Cont., Stays, Injunctions and the power of Bankruptcy on Mass Torts Assignment: Additional Cases Shiavo ex rel. Schindler v. Schiavo 403 F. 3d 1289 (11th Cir. 2005) Chapter III continued B. Dual State-Federal Proceedings (all) Complex Litigation Guide: 22. Mass Torts 22.4-22.5 (we will see documentary movie on trials of Pharmaceutical cases) June 9- Class Actions, Requirements, Types of Class Actions Maintainable, the Federal Fairness in Class Actions Act, What is involved in Class action lawsuits, notice to claimants, opt out provisions, certification, decertification, settlement Additional Cases In re Issuer Plaintiff Initial Public Offering Litig. 234 F.R.D. 67 (S.D.N.Y. 2006)\ Exploding the Class Action Agency Costs Myth by Myriam Giles, Cordozo School of Law 2006 (posted on website course materials) LOOK AT 23 (h) Attorneys fees award Assignment: Chapter IV- Class Actions BOOK A. Ethical Considerations B. Pre Requsites to be Certified as a Class Action- all except Peil v. National Semiconductor; LaMar v H& Novelty; Smilow v. Southwestern Bell Mobile Systems FRCP 23 (a) (b) D. Settlement 23(e) Class Action Fairness Act of 2004 Complex Litigation Guide: 21. Class Actions 242-349 Opt Out Procedures, Determining the Class Orders the Judge must make under 23(c) Order on Conduct of Parties 23(d)

June 11- Continuation of discussion on Class Actions Assignment (hopefully Class Action Guest Speaker) Additional Cases Bailey v. State Farm Fire & Cas. Co. 414 F.3d 1187 (10th Cir. 2005) In re Diet rugs Products Liability Litigations, 385 F. 3d 386 (3d Cir. 2004) Karnes v. Fleming- Complaint- Posted on our website Chapter IV- Class Actions E. Overlapping Class Actions G. Problems of Jurisdiction and Law June 13 J. Statutes of Limitations- American Pipe & Crown Cork and Seal Tolling the Statute Of Limitations N. Judicial Control of Settlement (23 e) Only In re Prudential Insurance Complex Litigation Guide 21: Class Actions continued Complex Litigation Guide 22.7 Class Actions in Mass Tort Cases Class Action Fairness Act Intro into Discovery Also read Summary of the Amendments to the Federal Rules of Civil Procedure posted on the website.
Electronic Discovery-

June 18 Discovery in the State and Federal MDLs and Class Actions; How does it work?; Appointment of Counsel, Adoption of Master discovery; Master Complaints and Answers; Confidentiality and Protective Orders; Document Depositories, Agreements to pay costs; Case Management Orders; Claiming Privilege, and inadvertent disclosure Additional Cases and Material In re Issuer Plaintiff Initial Public Offering Litig. 234 F.R.D. 67 (S.D.N.Y. 2006) (Continuation on Class Action Selection of Counsel under Rule 23 (g) Calyon v. Mizuho Securities,
Chapter 2007 WL 1468889 (S.D.N.Y.)

V: Discovery A. Overview B .E-Discovery

Zubulake v. USB **** Very Important C. Document Preservation- Nation Wide v. Forest Hills FEDERAL RULE 26 ALL Assignment F.R.C.P 36, and 37 Read Meta Data Discovery CLE material posted on website. June 23 READ THE CLE ARTICLE AND MATERIAL ON THE WEBSITE ON METADATA ANALYSIS, GUEST SPEAKER ON ELECTRONIC DISCOVERY June 25 Chapter V: Discovery D Confidentiality and Protective Orders Seattle v. Rhinehart Chicago Tribune v. Bridgestone Tires E Preserving PrivilegeTransamerica Computer Co. V. IBM) Complex Litigation Guide: Pretrial Procedures 31.1-31.48 Complex Litigation Guide: Part IV Sample Orders F.R.C.P 36, and 37 May carry over into July 9 June 30- Judicial Control of Pretrial Litigation- Continuation of Discussions of MDL and the Judge manages discovery issues, motion practice and selecting counsel Assignment: Chapter VI: Judicial Control of Pretrial Litigation B. SanctionsChapman v. Pacific Telephone & Telegraph D. Selection of Counsel In re Paper Antitrust Litigation Complex Litigation Guide Part I 10. General Principles F.R.C.P 37

July 2 Continuation of Chapter VI- Attorneys Fees, Recusal Issues, Settlement, Ethical Issues Assignment Additional Materials In re Kensington International Ltd. 368 F.3d 289 (3d Cir. 2004) Marcus and Sherman Chapter VI: Cont E. Attorneys Fees Awards Hensley v. Eckerhart F. Recusal US. V. State of Alabama In re IMB July 7 Continuation of Trying Complex Cases in State and Federal Court; Motions in Limine, Expert Testimony and Evidence Assignment Chapter VII-Cont C. Limiting Duration of Trial and Evidence MCI v. Am Telephone and Telegraph D. Bifurcation and Trifurcation a) In Re Bendectin E. Trial by Statistics The Duabert Hearing: Supplement material posted on the website Complex Litigation Guide: 23. Expert Scientific Evidence FRE 401, 402, 701,702, 703 Complex Litigation Guide Part IV Sample Orders in MDLs

July 9 Preclusion- Effects of Judgments and Issue Preclusion in Complex Litigation Additional Cases: Wolfert v. Transamerica Home First Inc. , 439 F. 3d 165 (2d Cir. 2006) In re Diet rugs Products Liability Litigations, 385 F. 3d 386 (3d Cir. 2004) Assignment Chapter VIII-Preclusive Effects of Judgments in Complex Cases A. Claim Preclusion 1. Persons or Entities Bound

2. The Effect of Judgments in Class Actions Complex Litigation Guide: Part II; Special Problems: 20. Multiple Jurisdictional Litigation B. Issue Preclusion in Complex Litigation 1. Persons or Entitles Bound 2. Which Issues were actually determined? July 14 REVIEW OF ALL CLASS MATERIAL Ch 2 Permissive Joinder (Rule 20) Compulsory Joinder 19(b) Intervention, Interpleader, Necessary Parties Fed Rules 13, 28, 20, 21, Requirement for Joining Parties Ch 3 Dual Proceedings- Duplicative Litigation Related Proceedings Jurisdiction- Federal v. State 28 USCA 1332 Federal Question Original Jurisdiction Removal, Motion for Remand, Transfer to an MDL Related Federal Proceedings Transfer Forum Non Convienes Transfer under MDL Proceedings MDL Panel and Procedures Dual Proceedings State Court Abstention- (traditional, equitable) Injunctions and Stays of State Court All Write and Anti Injuction Act Stays and Injunctions in Federal Court on other litigation Bankruptcy Stays Ch 4- Class Actions Perquisites to Class Actions FRCP 23 A Numerousity, Commonality, Typicality, Representative ness * Types- 23(b)(3)- catchall class action- all types have to satisfy 23(a) Class Action Fairness Act Settlement of Class Actions (23C) Ethics Attorneys Fees (Lodestar Method_ Class Action Fairness Act Problems with Choice of law Notice to Class Action Members- Opt Out Procedures

Judicial Control of Settlement Ch 5- Discovery Rule 26 Rule 26 Disclosures Changes for electronic Discovery-must disclose but look at limitations of electronic discovery, inaccessible or burdensome Rule 26 f- conference Plan for discovery- Document Retention- Confidentiality Types of DiscoveryPreserving Privilege Protective Orders Inadvertent Disclosure Supplementing Discovery MDL- pretrial orders METADATA and E Discovery Rules Ch 6 Sanctions Judicial Selection of Counsel Attorneys Fees Recusal Ch 7 Bifurcation Trifuctation Putting Limits on the Trial Duabert v. Merrell Pharmaceuticals FED Rule 401, 402, 702, 703 Trial by Statistics Ch 8 Claim Preclusion Collateral Estoppel Res Judicata Effects of Class Action Judgments

Ch 6 Judicial Control of Pretrial Litigation Evidence Rules 401,402, 702, 703 Expert Testimony and challenges in Duabert v. Merrell Pharmaceuticals Finding testimony is admissible under Daubert Settlement Promotion MDL- Bellwether Trials Sanctions Judicial Selection of Counsel Attorney Fee Awards Recusal of the Judge Chapter 7 Preclusion and Collateral Estoppel Parties bound by Prior Judgment Effects of Judgments in Class Actions Issue preclusion in Complex Judgments READING PERIOD, July 15-19 FINAL EXAMS July 20-23 This schedule is subject to revision based on the progress of the class.