• March 18, 2014

we_can_do_it__2Update (3/18/2014): This past week, U.S. District Court Judge Susan R. Nelson (D. Minn.) issued a 37-page decision granting in part and denying in part a defendant’s motion for summary judgment in a gender-based employment discrimination case. The Court’s analysis is comprehensive, thorough, and, in my view, spot on.

Couldn’t one of the many remarkably able male judges in the United States District Court for the District of Minnesota have reached the same result and done so as well?  Of course, the answer is yes, probably.  But the undeniable truth is that our intellects are shaped by our experiences, the cultural roots of gender inequity are inconceivably deep, and a diverse judiciary (as to gender and other social divides, as well, of course) cannot be some soft aspiration on a wish-list. It is absolutely critical and essential if our judicial system is to dispense justice.

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Update (11/22/2013):  (Under the subject line, “Vis meg en mann smarttelefon, og jeg vil vise hans liv.” (“Show me a man’s smartphone and I will show you his life” in Norwegian).

There are so many interesting angles in a recent order by the U.S. District Court (D. Minn.) (Nelson, J.) in the Ewald v. Royal Norwegian embassy, that the circuitry of my central processing unit (CPU) (f.k.a., my brain) is blown.

Mind you, I am not saying there are any “explosive” developments in this memorandum opinion and order. There aren’t. There are, however, several interesting elements and I cannot figure out how to organize my thoughts about them. (Plus, I guess the nuclear option is on my mind these days for some reason.)

  • Some readers may be interested in the decision’s treatment of discovery in U.S. courts as applied in the context of foreign governments;
  • Some readers may be interested in the decision’s parsing of Fed. R. Civ. P. 34(b)(2)(i), which seems to be triggered in every case with “tens of thousands of documents” and, particularly, in cases where one side is represented by a smaller law firm at a technological disadvantage;
  • Some readers may be interested in the issue of the discoverability of mobile phone data, text messages, and “voice messages.”
  • Some readers may be interested in the decision just because it is a rare example where a district court judge overrules a decision by a magistrate judge whose decisions, in this district and beyond, are normally accorded “extreme deference.” (One notes the District Court is at pains to emphasize that the Magistrate Judge’s ruling is for the most part affirmed and that the the court “respectfully reverses in part, the Magistrate Judge’s Order…”  Maybe this solicitude derives in part from the fact that this case has the rare feature of not just one but two such reversals (see below)).

The referenced 11/20/2013 Order is here.

Original Post (6/18/2013):  (Subject Line = Streng Anvendelse av Deadline Overstyrt (“Strict Application of Deadline Overruled” (in Norwegian))

Ellen Ewald sued the Royal Norwegian Embassy and others for gender discrimination and related claims in connection with her work for the consulate in Minneapolis.

But what about claims under Norwegian law?  Late in the process, it came to Ewald’s lawyers’ attention (Engelmeier & Umanah) that there may be claims under Norwegian law.  Ewald sought permission from opposing counsel to amend her complaint.  That request was denied.

The deadline for motions to amend was Saturday, September 15.  Court’s closed on Saturday, though, so plaintiff gets until Monday, the 17th, right?

U.S. Mag. Judge Steven E. Rau’s answer:  Wrong.  Read the rule.  If a court deadline is for a date certain, the normal rule that the deadline goes until the next business day does not apply (at least according to the federal rules 2009 advisory committee notes).

U.S. District Court Judge Susan R. Nelson answered by reversing Judge Rau’s denial of plaintiff’s motion to amend on this procedural default.  Judge Nelson pointed out: “Adhering to a strict reading of the Rule based on the Advisory Committee Notes seems particularly inequitable and, in this case, prejudicial, as the Court itself set the Saturday deadline.”

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