President Bush signed the initial Civil Justice Reform Executive Order, No. 12778, on October 23, 1991. The Office of General Counsel (OGC) issued Preliminary Guidance on this Executive Order on January 27, 1992, and included it in Volume II, Section I, pages 13-20 of the prior edition of the Regional Attorneys’ Manual. On February 5, 1996, President Clinton signed Executive Order No. 12988, which revoked Executive Order 12778. Like Executive Order No. 12778, Executive Order No. 12988 became effective 90 days after the date of signature and is applicable to litigation commenced subsequent to its effective date (May 6, 1996). This Guidance on Executive Order No. 12988 supersedes OGC's Preliminary Guidance on Executive Order No. 12778.
A copy of Executive Order No. 12988 is in Part 3, Section I. B. of the Manual. All OGC attorneys should read the Executive Order and be familiar with its requirements, particularly those concerning the conduct of civil litigation by federal government attorneys. This guidance expands on some of the provisions in section 1, and where relevant indicates changes from Executive Order No. 12778. Section 5 of Executive Order No. 12988 provides that the Attorney General shall coordinate efforts by federal agencies to implement sections 1, 2, and 4 of the Order, and authorizes the Attorney General to issue guidelines for the Department of Justice (DOJ) implementing sections 1 and 4 of the Order, which shall serve as models for internal guidelines of other agencies. DOJ has issued interim guidelines implementing sections 1 and 4(a) of the Order, 62 Fed. Reg. 39,250 (1997),1997 WL 404811 (F.R.).
The Executive Order refers throughout to the conduct of “litigation counsel,” which is defined in section 6(b) of the Order as “trial counsel or the office in which such trial counsel is employed.” All Commission trial attorneys assigned to a case and all Supervisory Trial Attorneys and Regional Attorneys are considered “litigation counsel” within the meaning of the Order.
Section 1(a) of Executive Order No. 12988 requires notice and an attempt at settlement prior to filing suit, unless the agency has previously used its conciliation processes, which of course will have occurred in Commission cases. But even though not required by the Executive Order, OGC believes presuit settlement efforts should be considered in every case where a decision to file suit has been made, whether the decision was the Commission's, the General Counsel's, or the Regional Attorney's under his or her redelegated authority. Any resolution agreed to through presuit negotiations must be filed with the court together with a complaint, and this requirement should be made clear to the prospective defendant(s) at the time settlement efforts are initiated. Presuit settlement negotiations can sometimes save the parties substantial time and expense, and as long as the Commission insists on a court settlement, attempts at presuit resolutions should not undermine the Agency's conciliation processes.
Section 8(b)(5) of the Executive Order exempts from the prefiling notice requirements situations where litigation counsel determines that “exigent circumstances make providing such notice impracticable, or such notice would otherwise defeat the purpose of the litigation,” and gives as examples actions seeking temporary restraining orders or preliminary injunctive relief. Even where the facts support issuance of a TRO, however, notice and an attempt at settlement should normally take place prior to filing a petition with the court, and Fed. R. Civ. P. 65(b) requires a certification to the court where notice has not been provided prior to seeking a TRO (notice is always required prior to issuance of a preliminary injunction (Rule 65(a)(1)). One obvious situation where notice would “defeat the purposes of the litigation” is where record destruction may occur as a result of the notice. You are required to contact your Litigation Management Services (LMS) liaison attorney prior to seeking a TRO or preliminary injunctive relief, and discussion of possible reasons for proceeding without notice and settlement efforts should take place at that time.
Section 1(b) of the Executive Order requires that as soon as practicable after filing suit, and throughout the litigation, litigation counsel should evaluate settlement possibilities and make reasonable settlement efforts. This section also requires that such efforts “include offering to participate in a settlement conference or moving the court for a conference pursuant to [Fed. R. Civ. P.] 16.” Even where presuit settlement negotiations have occurred, litigation counsel should initiate settlement efforts as soon after filing as there appears any potential for resolving the suit. Counsel should make additional settlement efforts as the litigation progresses.
It is important to remember that ethical rules require an attorney to inform his or her client promptly of the substance of settlement offers. See Center for Professional Responsibility, American Bar Association, Model Rules of Professional Conduct 1.2(a) & 1.4(a)(1) & Comment  to Rule 1.4 (2004 ed.). See also Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct 31-33, 54 (5th ed. 2003). Thus, even where defense counsel has indicated no interest in settlement, conveying a specific proposal to him or her will ensure that the client has an opportunity to consider the Commission's terms of resolution.
Section 1(c) of Executive Order No. 12988 requires litigation counsel to make reasonable attempts to resolve disputes expeditiously and properly before trial. Section 1(c)(1) directs litigation counsel to suggest use of an appropriate alternative dispute resolution (ADR) technique “[w]here the benefits of [ADR] may be derived.” Section 1(c)(2) states that use of ADR to resolve claims is appropriate “after litigation counsel determines that the use of a particular technique is warranted in the context of a particular claim or claims, and that such use will materially contribute to the prompt, fair, and efficient resolution of the claims.”
The above provisions obviously leave a great deal of discretion to litigation counsel. OGC believes litigation counsel is in the best position to determine whether it would be appropriate to use a formal ADR technique in a particular case and therefore, with the exception noted in the next paragraph, the Regional Attorney has authority to agree to the use of formal ADR processes in any case. However, in cases where the General Counsel has retained settlement authority, the other parties and the court should be informed prior to a decision to use a formal ADR process that any agreement reached through the process is subject to the approval of the General Counsel.
There are two significant changes from the ADR section of the prior Executive Order. First, section 1(c)(1) of Executive Order No. 12778 provided that “[w]henever feasible, claims should be resolved through informal discussions, negotiations, and settlements rather than . . . any formal or structured [ADR] process or court proceeding.” The otherwise identical sentence in section 1(c)(1) of Executive Order No. 12988 eliminates the reference to “structured [ADR] process.” This change can be read as additional encouragement to use formal ADR processes. More important, an express prohibition in the initial Order on the use of “binding arbitration or any other equivalent ADR technique” (section 1(c)(3)) was eliminated from the current Order. Before agreeing to any ADR technique that would bind the Commission to follow the decision of a third party other than a court (or a magistrate exercising jurisdiction under Fed. R. Civ. P. 73), obtain approval from OGC, even where the Regional Attorney otherwise has settlement authority.
Section 1(d) of Executive Order No. 12988 provides: “To the extent practicable, litigation counsel shall make every reasonable effort to streamline and expedite discovery in cases under counsel's supervision and control.” Executive Order No. 12778 contained provisions in this section requiring litigation counsel to agree to exchange certain “core information” with other parties. These provisions were not included in Executive Order No. 12988, most likely because of the disclosure provisions added to Fed. R. Civ. P. 26(a) in 1993. The provisions in the prior Executive Order on review of document requests and on attempting to resolve discovery disputes with opposing counsel are retained in Executive Order No. 12988, and are discussed below.
Section 1(d)(1) of Executive Order No. 12988 requires each agency to “establish a coordinated procedure for the conduct and review of document discovery in litigation,” which “shall include, but is not necessarily limited to, review by a senior lawyer prior to service or filing.” The DOJ guidelines provide that the person designated to perform this review function “should have both substantial experience in document discovery and supervisory authority.” Thus, either a Supervisory Trial Attorney or the Regional Attorney should review all EEOC document requests before they are served. Where an individual in either of these positions prepares the document request, no further oversight is necessary. The Executive Order provides that the review determine:
that the request[s] [are] not cumulative or duplicative, unreasonable, oppressive, unduly burdensome or expensive taking into account the requirements of the litigation, the amount in controversy, the importance of the issues at stake in the litigation, and whether the documents can be obtained from some other source that is more convenient, less burdensome, or less expensive.
Section 1(d)(2) of Executive Order No. 12988 requires that before filing discovery motions or requesting sanctions for discovery abuses, litigation counsel attempt to resolve the dispute with opposing counsel, and that when a motion is filed over a discovery dispute, litigation counsel represent in the motion that the resolution attempt was unsuccessful or impracticable under the circumstances. Fed. R. Civ. P. 26(c) and 37(a)(2), (a)(4)(A), and (d) have similar requirements, as do most local district court rules. While applicable court rules must of course be followed, the Executive Order sets minimum requirements that must be met regarding any court filing over a discovery dispute.
Executive Order No. 12778 contained a section on expert witnesses which dealt with standards for expert testimony, conditions for disclosure of expert witness information, and prohibitions on contingency fees. This section was not included in Executive Order No. 12988. Subsequent to the initial Executive Order, standards for the reliability of expert testimony were established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). All Commission attorneys should be familiar with Daubert and the related cases of General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Also, see the December 1, 2000, amendments to Fed. R. Evid. 701, 702, and 703. Disclosure of expert information was addressed in the 1993 amendments to Fed. R. Civ. P. 26. Payment of contingency fees to experts – that is, the linking of expert compensation to the results of the litigation – is prohibited in Commission litigation.
Executive Order No. 12988 requires litigation counsel to take steps to seek sanctions against opposing counsel and parties where appropriate. The Order also provides that prior to filing a motion for sanctions, litigation counsel must submit the motion for review by the agency's Sanctions Officer, or his or her designee. In OGC, the Sanctions Officer is the Associate General Counsel for Litigation Management Services. Before submitting a proposed motion to the Sanctions Officer, the Regional Attorney should contact his or her LMS liaison attorney to discuss the matter.
The above review requirements do not apply to motions for expenses or sanctions under Fed. R. Civ. P. 37, other than contempt motions. The Sanctions Officer must review all contempt motions and motions for sanctions sought under authority such as Fed. R. Civ. P. 11(c) or 26(g), 28 U.S.C. § 1927, or the court's inherent powers. When in doubt about whether a proposed sanctions motion is subject to the Executive Order, contact your LMS liaison attorney. See Part 1, Section I.F. of the Manual for more information.
The Executive Order also requires that the agency's Sanctions Officer review sanctions motions filed against litigation counsel or against the agency or its officers. Motions filed against the Commission seeking sanctions under Fed. R. Civ. P. 37, other than for contempt, do not have to be submitted to the Sanctions Officer, but the district office's LMS liaison attorney should be notified of motions seeking sanctions against the Commission under Rule 37(b)(2), (c), or (d). The legal unit should also notify OGC’s Sanctions Officer of all other motions seeking sanctions against litigation counsel or the agency and of all motions for contempt against litigation counsel or the agency. Also, under OGC’s separate guidance in Part 1, Section I.F. of the Manual, Regional Attorneys are required to notify the Sanctions Officer upon receipt of a letter from opposing counsel indicating an intention to seek sanctions.
OGC concurs with the statement in DOJ's interim guidelines that “[s]anctions motions should not be used as vehicles to intimidate or coerce counsel when the dispute can be resolved on a reasonable basis.” Further, Commission attorneys should not retaliate in kind when opposing counsel file frivolous sanctions motions. The best response to such conduct is to ensure that the court is aware of it and then continue to act responsibly in representing the Commission's interests.
Section 1(f) of the Executive Order requires that litigation counsel “employ efficient case management techniques and . . . make reasonable efforts to expedite civil litigation in cases under that counsel's supervision and control.” The following directions from DOJ's interim guidelines apply to Commission attorneys:
Litigation counsel must move for summary judgment where appropriate to resolve litigation or narrow the issues to be tried. This rule is not intended to suggest, however, that summary judgment should be sought prematurely in a manner that will permit opposing counsel to defeat summary judgment.
Litigation counsel are also to make reasonable efforts to stipulate to facts that are not in dispute, and must move for early trial dates where practicable. . . . Litigation counsel should seek agreement to fact stipulations as early as practicable, taking into account the progress of discovery and their sound judgment as to the most appropriate and efficient timing for such stipulations.
At reasonable intervals, litigation counsel shall review and revise submissions to the court to ensure that they are accurate and that they reflect any narrowing of issues resulting from discovery or otherwise, and shall apprise the court and all counsel accordingly. Litigation counsel also should make an effort, where appropriate, to involve the court early in case management and issue-focusing. This effort may include apprising the court, during conferences under Federal Rule of Civil Procedure 16, of core issues and contemplated methods of resolution, such as settlement, ADR, stipulation, dispositive motion, or trial. . . .
These requirements are not intended to suggest that litigation counsel should concede facts or issues as to which there is reasonable dispute or uncertainty, or which cannot be corroborated.
|Title||Description and Web Address|
|Civil Justice Reform, Executive Order 12988||Text and history of Executive Order 12988, Civil Justice Reform, 61 Fed. Reg. 4729 (1996), on the National Archives’ web page for Executive Orders. http://www.archives.gov/federal_register/executive_orders/1996.html|
|Civil Justice Reform, Interim Guidance||Interim Guidance by the Department of Justice on Executive Order 12988, Civil Justice Reform, 62 Fed. Reg. 39250 (1997) on Government Printing Office’s web site (to retrieve, click on volume “62," then enter page 39250). http://www.gpoaccess.gov/fr/retrieve.html|