A few weeks ago I provided an update on the Eastern District of New York Hurricane Sandy Litigation and Case Management Order No. 12.

On December 2nd, the Court entered Case Management Order No. 13 (CMO #13) where the Court explained some of the obstacles the parties were having with the mediation process. The number of Hurricane Sandy cases has grown to over 1,200. The Court noted that to date, approximately 25% of the cases originally filed have successfully resolved through the expedited discovery and mediation process. Another 490 cases were since filed and currently over 600 cases are scheduled for mediation or in the process of mediation.

In order for mediations to proceed more expeditiously, the Court has ordered additional requirements for the parties in CMO #13:

  • The Parties must comply with CMO #12 regarding the selection of a mediator.
  • Mediations will no longer be conducted in Louisiana.
  • Plaintiff must participate actively in the mediations. Unless it is regarding an issue involving privilege, they must be available to answer questions about their claim since the mediation process is confidential.
  • Parties should consider having adjusters and/or engineers present for mediations where the issue involves a difference of agreement between adjusters’ estimates or engineering experts’ conclusions.
  • No party can unilaterally terminate the mediation—only the mediator may decide if the session should be adjourned and reconvened at a later date.
  • At least 30 days prior to the mediation, Plaintiff must send a written demand to Defendant’s counsel that includes a detailed description of Plaintiff’s position regarding areas of disagreement, including any critiques of defendant’s experts or adjuster’s conclusions, and which is supported by all documentation. If documents are not provided 30 days before the mediation, they will not be used at the mediation and may also be excluded from trial.
  • Within two weeks of receipt of the Plaintiff’s demand, Defendant must notify Plaintiff’s counsel about gaps in documentation and any areas of disagreement.
  • Mediators will hold a pre-mediation conference two weeks before the mediation. They will review items listed in a checklist which was directed to the mediators on November 20, 2014.
  • It is left to the discretion of the mediator to adjourn the mediation conference if necessary to obtain more information, however, if parties indicate they are ready for mediation and later indicate that they could not settle due to missing information, sanctions may be imposed.
  • If the parties reach an impasse about issues such as foundation damage that requires expert testimony, the parties must jointly notify the court, preferably before the mediation, so that a hearing can be held expeditiously and allow the mediation to proceed more smoothly.
  • Finally, the Court reminds the parties that sanctions may be a possibility if the Court discovers dilatory tactics or a lack of good faith by a party or its counsel.

We will continue to update you with the latest developments in the Eastern District of New York Hurricane Sandy Litigation and future Case Management Orders.