UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF LOUISIANA
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IN RE: HURRICANE IDA CLAIMS
FIRST AMENDMENT TO CASE MANAGEMENT ORDER NO. 1
October 25, 2022
INTRODUCTION
On August 29, 2021, Hurricane Ida struck near Port Fourchon, Louisiana as a Category
4 hurricane, battering southeastern Louisiana and inflicting catastrophic damage across this
Court's jurisdiction. Hurricane Ida (the “Hurricane”) was the second most damaging
hurricane to ever hit Louisiana, behind only Hurricane Katrina. 1
Since Hurricane Ida's landfall, the United States District Court for the Eastern District
of Louisiana has become, and presumably will continue to be, inundated with insurance
coverage-related litigation linked to the Hurricane. The damage and disruption to daily life
and business throughout the jurisdiction of this Court are profound and are expected to
interfere with the timely handling of the litigation arising from the Hurricane.
The Court desires, to the greatest extent possible within the powers granted unto it,
to eliminate increased difficulties to the parties involved, to bring as much of this litigation
1 https://www.kplctv.com/2022/04/05/final-report-ida-ties-it-strongest-winds-ever-hit-louisiana/.
Hurricane Ida is sometimes referred to hereinafter as the “Hurricane" or “Disaster” and the causes of action
arising thereunder are sometimes hereinafter referred to as the "Hurricane Cases."
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to resolution as justly and expeditiously as possible, and to allow the citizens of this District
to move forward with their respective recoveries.
With these goals in mind, the Court hereby approves this Case Management Order
(“CMO”) No. 1 to set forth the procedures for expedited discovery (the “Disaster Protocols")
and to facilitate efficient resolution of these matters through the establishment of a
streamlined settlement conference and mediation protocol, as described below. This CMO
establishes a mediation program, denominated as the Streamlined Settlement Program,
which will include a panel of neutrals and a Program Administrator. The Streamlined
Settlement Program shall be overseen by the Magistrate Judges, with Chief Magistrate Judge
Michael North presiding over day-to-day operations of the program, including the selection
of the neutrals and Program Administrator. The Administrator will assist with scheduling,
assignment of neutrals, calendar management, data collection and analysis, and periodic
reporting to the Court
SECTION 1. PROTOCOLS FOR INITIAL DISCLOSURES
The Court has studied the Disaster Litigation Initial Discovery Protocols
recommended by a study committee and adopted by the United States District Court for the
Southern District of Texas following Hurricane Harvey, as well as those enacted by the
Western District of Louisiana following Hurricanes Laura and Delta. These disaster
protocols call for prompt sharing of specified information to promote uniformity, to facilitate
prompt case evaluation and communication about individual cases/claims, and to facilitate
expedited mediation.
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Accordingly, this Court adopts the “Disaster Protocols” annexed hereto as Exhibit "A"
and makes them applicable to all Hurricane Cases. Except as provided hereinafter, any
discovery beyond that described in this Order is stayed. However, nothing in this Order shall
be construed to limit the information that can be exchanged in any particular case and
counsel for each party is encouraged and expected to provide any information that would
reasonably be helpful to their adversary in evaluating the case for mediation purposes.
The disclosures and exchange of information required by the Disaster Protocols shall
be due 30 days from the date that the last-responding defendant files responsive pleadings
(or if falling on a later date, 30 days from an Order denying a timely motion to remand). Any
information not shared with opposing counsel at least 15 days prior to a mediation shall not
be used at said mediation without leave of the presiding Magistrate Judge. Additionally, 15
days before the scheduled mediation, the parties shall provide a supplemental disclosure,
including any documents whose disclosure would have been required under the Initial
Disclosure requirements that have come to light since the case was filed.
The parties are strongly urged to meet and confer in good faith about exchanging
information they desire or intend to use even when disclosure is not technically or arguably
required by this Order.
SECTION 2. PRIVILEGE
Documents over which a privilege may properly be asserted include communications
between counsel and client, documents created with the primary purpose of anticipation of
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litigation, 2 and communications between or among counsel and their respective clients. As
recognized by the United States District Court for the Eastern District of New York IN RE:
HURRICANE SANDY CASES, “Documents routinely prepared in the ordinary course of
business, including but not limited to adjusters' reports, and other expert analyses, including
draft reports, are not privileged and should be produced.” 3
Therefore, this Court orders that any party withholding information or documents
otherwise required to be produced pursuant to the Disaster Protocols produce a privilege
log to opposing counsel on or before the Disclosure Deadline detailing all information or
documents that it declined to produce on the basis of privilege. The log should include the
author of the document, the recipient(s) of the document, a job or function description of
every recipient of the document, the date of the document, the subject matter of the
communication, and the specific privilege(s) asserted.
Any dispute concerning privileged items shall be submitted as expeditiously as
possible to the presiding Magistrate Judge in such form as he or she may direct. The
presiding Magistrate Judge’s decision thereon shall be issued to the parties and the parties
shall comply with it unless it is overturned by the District Judge following an appeal filed
pursuant to Rule 72 of the Federal Rules of Civil Procedure within five days of the Magistrate
Judge’s decision.
2 United States v. El Paso Co., 682 F.2d 530, 542–43 (5th Cir. 1982).
3 United States District Court for the Eastern District of New York, In Re Hurricane Sandy Cases: Case
Management Order No. 1, p. 10, available at https://img.nyed.uscourts.gov/files/general-
ordes/14mc41cmo01.pdf.
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SECTION 3. STREAMLINED SETTLEMENT PROGRAM (“SSP”)
It shall be presumed that the litigants in Hurricane Ida cases will be subject to the SSP
described in this CMO. Within 15 days of the filing of the defendant’s responsive pleading
(or if later then within 15 days of either an Order denying a motion for remand or of entry of
this Order) either party may petition the presiding Magistrate Judge to opt out of the SSP
(Section 3 of this Order). The parties may not opt out of the mandatory disclosures required
by this CMO and described in Exhibit “A.” If a party shows good cause and is permitted to
opt out, the case will then be promptly scheduled for a Federal Rule of Civil Procedure 16
conference and a specific case-management order shall be issued. If the parties do not seek
to opt out, they are electing to participate in the two-staged Streamlined Settlement Program,
which is described as follows:
A. First Stage: Principals/Experts Conference
Within 30 days of the Disclosure Deadline in all Hurricane Cases, all parties shall
conduct an informal settlement conference among the parties (i.e., their principals), their
counsel, and their respective experts/adjusters. Within 15 days of the Disclosure Deadline,
counsel for the plaintiff(s) and counsel for the defendant(s) shall meet to confer and discuss
a mutually convenient time, date, and manner for the conference. In light of the COVID-19
pandemic as well as the desire to resolve the Hurricane Cases as expeditiously as possible,
these settlement conferences may be conducted by phone or other means of electronic audio
or video communication, including but not limited to Zoom, Skype, or similar platforms.
To the extent it is impractical for a parties’ principal to participate in the conference,
counsel for that party must have full authority to resolve the case from their clients, who
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shall be readily available by telephone throughout the conference. Disputes concerning
participation in this conference should be brought to the attention of the presiding
Magistrate Judge before the conference takes place. The Parties are strongly urged to use
the forms attached to this CMO as Exhibits B (insured(s)) and Exhibit C (insurer(s)) in
connection with the informal settlement conference and mediation.
B. Second Stage: Mediation
Cases that do not resolve during the initial settlement conference shall be set for a
formal mediation.
1. Appointment of the Panel of Neutrals
The Court shall solicit applications for experienced and qualified mediators
(“neutrals”) and shall appoint a single panel of 30 neutrals, whose names shall be on a wheel
from which appointments shall be made in rotation. The panel may be expanded if
experience shows the need for additional neutrals to adequately service the caseload.
2. Scheduling of Mediation
Within 75 days from the date that the last-responding defendant files responsive
pleadings (or if falling on a later date, 30 days from an Order denying a timely motion to
remand), the Program Administrator shall schedule a settlement conference with the
presiding Magistrate Judge or direct the parties to mediation with a “neutral” from the Court-
approved list. The presiding Magistrate Judge may elect to serve as neutral to conduct a
settlement conference with the parties, in lieu of and/or subsequent to early mediation with
an appointed neutral.
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If any party perceives a potential conflict associated with the assigned neutral,
counsel for that party shall immediately inform opposing counsel and thereafter inform the
Chief Magistrate Judge or the Program Administrator, who will presumptively reassign the
case to a different neutral. This provision should not be read to allow “neutral shopping”
and, should the Court determine such is taking place, the responsible party or parties may
be subject to sanctions.
The Chief Magistrate Judge, Program Administrator, or appointed neutral for the case
may set a scheduling conference, or communicate with counsel about availability through
other means, but shall seek to schedule the mediations in an expeditious manner at mutually
convenient times and dates for all parties. It is the goal of the SSP to conduct mediations
within 90 days of the neutral’s appointment. If mediation is canceled with less than 14 days’
notice by either party, the canceling party will pay a $500 fee to the assigned neutral.
3. Conduct of Mediation
After scheduling of the mediation, counsel for each party shall submit confidential
statements solely to the appointed neutral. The appointed neutral shall determine, after
conferring with the parties, the length of the confidential mediation statements and the
permissible number of exhibits attached thereto.
Plaintiff(s) shall be present in-person along with counsel (subject to accommodations
approved by the Chief Magistrate Judge or the case’s appointed neutral). Defense counsel
shall also attend in-person. A representative from defendant(s) is encouraged to attend, but
unless otherwise directed by the Chief Magistrate Judge the defendant(s)’ representative
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shall not be required to attend if counsel for the defendant has full authority to resolve the
case. In addition, a representative of the defendant shall be readily available by telephone.
The presiding Magistrate Judge or a neutral from the court-approved list shall
mediate all cases. To the extent agreed by the parties and the presiding Magistrate Judge or
the case’s appointed neutral this mediation or settlement conference may be conducted by
phone or other means of electronic audio or video communication, including but not limited
to Zoom, Skype, or similar platforms.
As part of this Streamlined Settlement Program, the neutral may allow each party to
make opening statements but there shall be no live witness testimony. The parameters of
any settlement conference presided over by a Magistrate Judge are fully within the discretion
of that judge.
i. List of Neutrals
The Court will, in due course, solicit applications, designate, and
appoint neutrals to serve on the SSP panel and will publish that list as soon as
practicable thereafter.
ii. Neutral Training
The Court may, at its discretion, undertake to provide special training
to the neutrals through one or more of its Magistrate Judges or as otherwise
directed by the Chief Magistrate Judge. The Court, through its Magistrate
Judges, may jointly form a plaintiffs’ liaison committee and a defense liaison
committee. If formed, the Court may solicit input and responses concerning
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commonly occurring legal issues that the liaison committees, from experience,
believe may arise in a large number of these cases, along with relevant case
law or other authority addressing these issues. While the ultimate
determination of any such common issue may well be fact driven, and the
outcome of any legal issue will be determined by the Court, the Court may seek
this information in order to educate and fully prepare the appointed neutrals
with the hope of expediting the settlement process. The assigned Magistrate
Judges may facilitate discussions by and among the appointed neutrals to
promote, to the extent possible, consistency in the resolution of cases.
C. Extensions of Time
The Chief Magistrate Judge may extend by 21 days any deadline specified in this Order
upon a joint request or for good cause. No further extensions will be provided absent
exceptional circumstances.
D. Stay of Proceedings / Discovery
Except for the disclosures required by the Disaster Protocols, there shall be no formal
discovery for any of the Hurricane Cases during the SSP. During the entirety of the SSP, all
pretrial matters, discovery, and related activity shall be stayed for cases subject to this Order
unless and until the Chief Magistrate Judge certifies that the parties for a particular
Hurricane Case have complied with the requirements of this Streamlined Settlement
Program.
Discovery on a limited issue or in exceptional circumstances may be authorized by
the Chief Magistrate Judge. The exceptional circumstances as well as the scope and limits of
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any permitted discovery shall be determined by the Chief Magistrate Judge. The parties
should understand that, given the purpose of this Order, it is highly unlikely that any
discovery outside that provided for in the Disaster Protocols will be permitted.
E. Procedure following mediation
Once the mediation is concluded, counsel for the parties shall notify the Chief
Magistrate Judge and/or the Program Administrator, advising whether the mediation was
successful and whether further discussions are necessary or advisable to resolve the case.
In case of the latter circumstance, the parties may request that the presiding Magistrate
Judge assist in additional settlement discussions. At the presiding Magistrate Judge’s
discretion, further mediation or a settlement conference may be ordered, or the case may be
designated to have the stay lifted and returned to the docket for scheduling.
F. Retroactive Application to Pending Cases
Following adoption of this CMO, the Court will issue an Order providing the
opportunity for parties in previously filed cases to opt-in to the SSP by agreement of the
parties with consent of the presiding District Judge.
SECTION 4. APPOINTED NEUTRALS
A. Compensation of Appointed Neutrals
The appointed neutrals under the SSP shall be compensated in the amount of $400
per hour and all actual expenses of the appointed neutrals, including but not limited to travel,
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meeting rooms, telephone, and electronic audio or video conference means. No
administrative fee may be charged by any neutral.
Unless otherwise directed by mutual agreement of the parties or as otherwise
directed by the Chief Magistrate Judge, all of the above fees and expenses shall be paid
twenty-five (25%) by the plaintiff(s), and the other seventy-five (75%) of the invoiced
amounts shall be paid by the defendant(s). The cancellation fee referenced under Section
3.II.A will be paid by the canceling party or parties.
B. Role of Appointed Neutrals
The appointed neutrals may communicate ex parte with the presiding and/or Chief
Magistrate Judge without providing notice to the parties, including communication certifying
that the parties have complied with the requirements of the SSP.
The presiding and/or Chief Magistrate Judge and appointed neutrals may initiate
contact and communicate with counsel for any party as he or she deems appropriate with
respect to the efficient administration and management of the SSP.
The presiding and/or Chief Magistrate Judge and appointed neutrals, the parties, and
those assisting the foregoing shall be bound by the confidentiality of the settlement
discussions.
C. Notice to the Chief Magistrate Judge
If no party to a Hurricane Case petitions to opt out, then the parties shall jointly send
notification of participation in the SSP to the Chief Magistrate Judge within seven days
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following the expiration of the opt out deadline in their case (i.e., 22 days from the last
defendant filing a responsive pleading).
SECTION 5. COURT-APPOINTED UMPIRES REQUIRED UNDER CERTAIN POLICIES
If an insurance policy concerning a claim involving the Hurricane provides for court
appointment of a neutral or third-appraiser for valuation disputes, hereinafter referred to as
an “Umpire,” any request for the appointment by this Court of an Umpire shall be made in
writing no later than 14 days following the filing of the defendant’s responsive pleading. Any
motion or request for this Court’s appointment of an Umpire shall be submitted to the Chief
Magistrate Judge. The deadline may be extended by the Chief Magistrate Judge in exceptional
circumstances.
An Order concerning the Umpire’s appointment and any applicable deadlines shall be
issued to the parties by the Chief Magistrate Judge and shall be complied with unless the
Order is overturned by the District Judge following an appeal filed under Federal Rule of Civil
Procedure 72 within five days of the Magistrate Judge’s decision. The Court may elect to
issue public notice for interested parties to apply for consideration of appointment as
Umpires pursuant to this Section.
SECTION 6. COURT SUPERVISION
The Mediation Program shall be overseen by the Magistrate Judges, with the Chief
Magistrate Judge presiding over day-to-day operations of the program. The Court shall
appoint a Program Administrator to assist with scheduling, assignment of neutrals, calendar
management, data collection and analysis, and periodic reporting to the Court. The Court
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shall solicit applications for an experienced and qualified individual or firm to serve as
Program Administrator.
The costs of the Program Administrator shall not exceed $350/case and shall be
assessed against the parties in the same percentages as the mediation costs (75% to
defendants, 25% to plaintiffs).
SECTION 7. SSP FEES UNRECOVERABLE
Fees and costs paid to the appointed neutral or to the Program Administrator by the
parties shall not be recoverable as taxable costs if the case is placed back on the docket and
resolves by dispositive motion or judgment after trial.
25th October
SO ORDERED, this ___ day of ________________, 2022
For the en banc court:
________________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
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