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EDWBA November 2018 Newsletter
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Meet the Don
By John B. Tuffnell, Tuffnell Law S.C.
 
Donald A. Daugherty is the new President of the Eastern District of Wisconsin Bar Association.
 
Don was born in New York City and was raised in Madison, Wisconsin where he attended Madison West High School. Don continued his formal education at the University of Virginia, graduating in 1985. After working as a paralegal in Washington, D.C. for a couple of years, he then moved back to the Midwest and enrolled in law school at Northwestern University. Don earned his law degree in 1990.
 
Don began his legal career as a clerk to the Honorable Roger J. Miner of the U.S. Court of Appeals for the Second Circuit. Litigation suited Don's competitive nature and his clerking experience convinced Don to focus on trial work. Don found his way back to Wisconsin and joined the litigation team at Foley & Lardner in late 1991, beginning a 25-year career in civil litigation in Wisconsin.
 
Don now practices business litigation at Godfrey & Kahn, focusing on IT litigation, E-commerce issues, and representing financial institutions. Don represents parties in disputes in state and federal court and in commercial arbitration. He frequently presents on various legal topics at bar and continuing education seminars, such as recent trends in personal jurisdiction jurisprudence and the application of the attorney-client privilege to inhouse counsel.
 
Don is married to Raye Daugherty, a partner at Quarles & Brady who practices in patent prosecution and intellectual property issues. Don and Raye have two children and the family lives in River Hills.
 
Don's interests away from work and home include sports, American history, travel with his immediate family and vacations with his extended family in Door County. Don is an avid historian and features an extensive collection of biographies in his office to compliment his many legal treatises. Don is proud of his Irish heritage and is not shy about sharing (some would say eager to share) glasses of fine Irish whiskey with guests.
 
Don stays active in sports and politics. He still plays soccer in a men's over 30 year-old league, notwithstanding eligibility for the over-55 (near Medicare-eligible) league. Though Don may have lost a step or seven, younger opposing players frequently limp away from tackles because Don still enjoys contact and the physical side of the game.
 
Don served on the State’s Judicial Selection Advisory Committee from 2011 to 2018. He is a member of a number of professional associations, including the Defense Research Institute and the Thomas E. Fairchild American Inn of Court.
Practice Pointers on Protective Orders and Filing of Sealed or Restricted Documents
By Kelly J. Noyes and Christopher E. Avallone, von Briesen & Roper, s.c.

Over the past few years, the Eastern District of Wisconsin Bar Association has hosted a handful of programs to help the bar understand how to properly use protective orders and file sealed or restricted documents. As a follow-up, this article provides a few practice pointers on these topics based on recent discussions with members of the Court and the Clerk’s Office.

Before diving into the specific practice pointers, one overarching theme emerged from each discussion — documents filed in federal courts are “presumptively open to the public,” and the Eastern District takes this presumption seriously. See Bond v. Utreras, 585 F.3d 1061, 1073-75 (7th Cir. 2009). This means that parties should think about confidentiality issues up front and well before filing documents, rather than assuming that the court will keep all filings from the public eye or waiting until the filing deadline to consider confidentiality issues. With this presumption in mind, the members of this bar are reminded of the following: 

Protective Orders
  1. The Appendix to the Eastern District’s Local Rules contains a sample protective order. Attorneys should draft their protective orders using this sample, but should not neglect to customize the sample to meet the needs of their cases. Beyond the basics—such as filling in the correct parties’ names—this means that attorneys should consider whether their case needs only a “confidential” designation, or whether the case requires stricter “attorneys’ eyes only” protections. Attorneys should also consider whether their case will involve protective health information, which may require the parties to include language complying with HIPAA.
  2. Assuming the parties agree on the terms of the protective order, one attorney should file a joint motion for entry of the protective order; the proposed protective order should be attached to the motion.
  3. Even when the parties’ stipulation or joint motion supports entry of a protective order, Federal District Judges can only issue a protective order upon the parties’ showing of “good cause.” Fed. R. Civ. Pro. 26(c); Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858-60 (7th Cir. 1994) (explaining what “good cause” requires and applying definition to reverse lower court order that did not make independent determination that “good cause” existed). Merely saying that the parties agree that confidential information may be exchanged and filed, with no explanation for the basis of that belief given the specifics, is insufficient.  
Filing Sealed and Restricted Documents
  1. Both attorneys and judges use the term “sealing” too broadly. A document that is “sealed” is only viewable by the judge and an order is required for anyone, including the filer, to view it. For civil cases, a document that is “restricted” is one that only case participants may view. This means, in most instances, parties should ask the court to restrict the documents to case participants, rather than “seal” them.
  2. Attorneys should be mindful of the presumption of public access and limit their sealed or restricted filings to the greatest extent possible. If only limited portions of a document contain confidential information, the attorney should submit a redacted version of the document in addition to filing an unredacted sealed or restricted version. Alternatively, if only certain pages of a multi-page document containing confidential information are relevant, the attorney should consider submitting only those pages that are relevant. The parties should also consult with each other prior to filing to see if they can remove confidentiality designations prior to filing documents with the court.
  3. If an attorney seeks to file a document that the other side has denominated as confidential, the attorney has two options under General L.R. 79(d)(7): (1) the attorney can move to seal the filing, or (2) the attorney can file a motion objecting to the material’s denomination as confidential. 
  4. Finally, attorneys (or their assistants) should always refer to the comprehensive instructions provided by the Clerk’s office whenever filing a sealed or restricted document. See http://www.wied.uscourts.gov/sites/wied/files/documents/Filing%20Restricted%20and%20Sealed%20Documents.pdf.
Federal Courthouse Undergoing Exterior Repairs and Renovation
By Barbara Fritschel, U.S. Courthouse Librarian
 
Have you wondered about all of the scaffolding at the Federal Courthouse? Over the past 120 years, weathering, pollution, and other factors have caused damage to the granite. This damage includes spalling, where parts of the granite pop out, exfoliation, where a crust forms on top of the granite, and cracking at the corners. The mortar between the granite blocks also needs to be replaced. 
 
The project to repair all of these conditions will last two years. The quarry at Mt. Waldo, Maine, is no longer in existence so trying to match granite that has spalled or cracked is a concern. The exfoliation is removed by bouncing micro sponges off the surface. The work can only happen when the temperature is at 40 degrees or higher so the scaffolding will come down for the winter. A little known fact about our granite—the same quarry provided the granite for Fort Knox.

 
2018 Bankruptcy Rules Changes
By Barbara Fritschel, U.S, Courthouse Librarian

Life has three constants—death, taxes and rule changes to the federal procedural rules. New bankruptcy rules go into effect on December 1st. There are several significant changes to the Federal Rules of Bankruptcy Procedure, many of which are designed to conform to the rules of civil and appellate procedure. Below is a summary of some of the biggest changes.
 
Rule 3002.1.
Deals with payment changes to claims secured by a security interest in the Debtor’s primary residence. The rule’s notice requirement may be modified by the court in cases involving a home equity line of credit. Also, a party in interest who objects to the payment change must file a motion before the new amount is due unless the court orders otherwise.
 
Rule 5005.
Electronic filing is now mandatory except for pro ses. Attorneys may file print if allowed by the court for good cause or by local rule. Courts may require pro ses to file electronically by court order or local rule. What constitutes an electronic signature is defined. Similar language has been added to Rule 8011.
 
Rule 7062. 
Creates an exception to F.R.Civ.P. 62. Procedures to enforce a judgment are stayed for 14 (rather than 30) days after the judgment’s entry.
 
Rule 8002. 
Follows F.R.A.P. 4. Defines “entry” and spells out requirements for inmate legal mail systems. (Inmate mail rules are also in Rule 8011.)
 
Rule 8006. 
Provides authority for the bankruptcy court to file a short supplement statement on merits of a joint certification for a direct appeal to the Court of Appeals.
 
Rules 8007, 8010, 8021, 9025. 
Modified to conform to F.R.Civ.P. 62. “Supersedeas” is eliminated and “other security” is added.
 
Rules 8013-8017, 8022. 
Changes page limits to length limits for various pleadings/filings to conform with FRAP. Adds certificate of compliance guidelines. Rule 8017 also adds a section for a brief by an amicus curiae when a rehearing is being sought.
 
Rule 8018.1. 
New rule. If a bankruptcy court has issued an order lacking the constitutional authority to do so, the district court may treat such order as a proposed findings of fact/conclusions of law.
MULS Federal Practice Society – Reflections on Evening at the Courthouse
 
In September, students from Marquette University Law School’s Federal Practice Society (FPS) attended the Evening at the Courthouse event. All FPS members who attended the event were provided nametags marked with a gold star, identifying them as students. Readily identifiable with their stars, FPS members were warmly welcomed by judges and attorneys. The FPS greatly appreciates the intentionality on behalf of attorneys who sought out students during the event. Brendan Sofen, a 1L at Marquette, noted that the event offered him a unique opportunity to create “valuable connections” with “both lawyers and judges in the Milwaukee area that I otherwise would not have the opportunity to meet.” Brendan highlighted that he “can’t wait to go back to the next EDWBA event at the courthouse.” Many FPS members who attended share the same sentiment. The Evening at the Courthouse event was a wonderful event that provided precisely the networking exposure that FPS members desire.

The FPS hopes to continue such success at future events, with hopes to both increase students’ exposure to various federal practice areas, but also to deepen the connection between students and the wonderful judges and attorneys who comprise the EDWBA.

The Federal Practice Society is a student organization at Marquette University Law School that works with the Eastern District of Wisconsin Bar Association to help introduce students to the federal side of the law. The organization offers events on campus events that permit students to explore different areas of federal practice though attorney panel events, where, students are able to learn about a specific field and get meaningful answers to their questions directly from federal practitioners in the Milwaukee area. Law students are often told of the importance of networking, but it can be challenging to find those opportunities outside of the law school. Through the generous help of the EDWBA, the FPS is able to bring incredible networking opportunities directly to students with events such as the Brown Bag Lunch Series, seasonal Happy Hour events, and the Evening at the Courthouse. At these events, students often experience a more impactful networking opportunity.
Ghosts and Gargoyles?
By Barbara Fritschel, U.S. Courthouse Librarian
 
Is the Federal Courthouse haunted? A judge who just couldn’t leave the bench? A defendant who said “This isn’t the last you’ve seen of me?” Someone who died in the building? Do gargoyles fly off the tower on certain nights of the year to administer their own justice?
 
When most people think of ghosts in the courthouse, they recall hearing something about a U.S. Attorney dying in the building. Edward W. Miller was confirmed by the Senate as the U.S. Attorney in February 1923. On May 6th of that year, he was involved in an elevator accident. The elevator operator reported the elevator suddenly rose when Mr. Miller tried stepping in it. He was thrown backwards, his head hit the ground and his legs were caught beneath the elevator. He was rushed to the emergency room where his injuries were listed as a severe scalp laceration and contusions to the legs. He died a week later at home. So as far as we know, no one has died in the building and we are not expecting Ghost Busters to show up any time soon. If there are any ghosts, they must be across the street enjoying happy hour at the Pfister.
 
Now as to the gargoyles, the building doesn’t have any. (Trick question). The Federal Courthouse does feature figures at the four corners of the tower but they are grotesques. In order for a carving to qualify as a gargoyle, it has to spit—i.e.  it drains water from the building. Our figures just look cute or scary (depending on your perspective) so they are merely a grotesque.
Pro Bono Recognition Luncheon
Halloween Happy Hour
Brown Bag Luncheon with Magistrate Judge Joseph
For questions please contact Katy Borowski
at 414-276-5933 or
kborowski@milwbar.org.
Copyright © 2018 EDWBA, All rights reserved.


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