Litigation Insights

Analysis and practical guides on litigation.

199 articles, checklists, and guides on litigation law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

LitigationDiscovery

Negotiating an ESI Protocol and Managing E-Discovery Costs

Electronic discovery is where litigation budgets are consumed, and the decisions that determine the cost are made in the first sixty days by lawyers negotiating a document most of them have never drafted carefully. This guide covers the ESI protocol clause by clause. It starts with the meet and confer obligation and the proportionality standard that frames every dispute, then works through the scope decisions that drive volume: custodians, date ranges, and data sources, including the collaboration platforms and messaging applications that now hold the communications email used to hold. It covers search methodology, including keyword negotiation and technology assisted review, and the production format specifications that determine whether the received documents are usable. Later sections address privilege logging and the Rule 502(d) order that should be entered in every case, inaccessible sources and cost shifting, and the preservation failures that produce sanctions.

Casey Scott McKayMarch 18, 202625 min read

LitigationFederal Practice

Negotiating a Protective Order and Filing Under Seal: A Practical Guide

Protective orders are negotiated early by people who do not yet know what the case will require, and sealing motions are drafted late by people who assume the designation does the work. Both assumptions cost money. This guide covers the negotiation term by term, the designation discipline that keeps designations credible, the challenge procedure from both sides, and the sealing motion that actually succeeds — with the document-by-document table and business declaration that separate a granted motion from a denied one. It includes an access log, a redaction protocol, disposal mechanics, and what to do when someone moves to unseal years later.

Casey Scott McKayMarch 18, 202629 min read

LitigationFederal Practice

Protective Orders, Confidentiality Designations, and Sealing: Secrecy and Its Limits in Federal Court

Litigation forces parties to disclose material they would never share voluntarily, and the machinery that makes this tolerable is the protective order — which is also, increasingly, the machinery that courts scrutinize when the public asks what a case was about. This article separates the two questions that practitioners routinely conflate: what discovery material may be kept private between the parties, which is governed by a permissive good-cause standard, and what may be kept out of the public record once filed, which is governed by a much more demanding right of access. It covers designation practice and its abuses, tiered access including attorneys-eyes-only, clawback protection, and how sealing motions actually succeed. It explains why the standard for keeping discovery material confidential differs sharply from the standard for sealing a court filing. It closes with the drafting and practice consequences for both producing and receiving parties.

Casey Scott McKayMarch 17, 202628 min read

LitigationFederal Practice

Forum Strategy Toolkit: Clauses, Transfer Motions, and First-Filed Briefing

This toolkit collects the documents that decide forum disputes: a clause that does what the drafter intended, a comparison worksheet that converts instinct into a client-facing analysis, the witness declaration that determines whether a transfer motion succeeds, a forum non conveniens conditions stipulation, first-filed briefing for both sides, and the standstill agreement that prevents the declaratory-action race entirely. Each template is annotated with its purpose, its owner, and the failure it prevents, and the drafting notes explain which single word in each provision does the work. Each template carries drafting notes on what the court is actually weighing and what evidence supports it. Adapt everything to the district, the parties, and the claims. The declaration templates in particular are where transfer motions are won.

Casey Scott McKayMarch 16, 202613 min read

LitigationFederal Practice

Venue and Transfer Checklist: A Practical Checklist

Forum decisions are made once and lived with for years, and the motions that follow are won on the specificity of the record. This checklist runs the whole sequence: comparing candidate districts on the factors that actually differ, confirming venue including the special statutes that displace the general rule, avoiding the demand letter that invites a declaratory action, building a transfer motion around named witnesses beyond the subpoena power, enforcing or resisting a forum selection clause after Atlantic Marine, briefing first-filed priority, and sequencing motions so nothing is waived. It covers venue propriety, the section 1404 convenience factors, forum selection clause enforcement, first-filed disputes, and the record each requires. Separate sections address the movant and the party resisting transfer. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayMarch 15, 20267 min read

LitigationFederal Practice

Moving or Keeping a Case in Your Chosen Forum: A Practical Guide

Forum fights are won on preparation done before filing and on the specificity of the record supporting a motion. This guide covers both sides: choosing a defensible forum and documenting why, avoiding the demand letter that hands the other side a declaratory action, drafting a transfer motion around named witnesses rather than general inconvenience, enforcing or resisting a forum selection clause after Atlantic Marine, briefing first-filed priority and its exceptions, and handling removal and multidistrict tag-alongs. It includes a forum comparison worksheet, a motion outline, the declarations that decide these motions, and the errors that recur. A worked transfer fight shows how the convenience factors are actually built from declarations. It also covers first-filed disputes, forum selection clause enforcement, and parallel state proceedings.

Casey Scott McKayMarch 14, 202627 min read

LitigationFederal Practice

Forum Selection, Transfer, and Parallel Proceedings: Choosing and Keeping the Court You Want

Where a case is heard shapes its outcome more than most substantive rulings, and the doctrines controlling that question are scattered across venue statutes, transfer provisions, contract enforcement, and abstention. This article assembles them. It covers venue and the transfer statutes, the transformed analysis that applies when a valid forum selection clause exists after Atlantic Marine, forum non conveniens for foreign alternatives, the first-filed rule and its exceptions, abstention where parallel state proceedings exist, anti-suit injunctions against foreign litigation, and consolidation through multidistrict litigation. It closes with the practical question of what actually happens to choice of law when a case moves.

Casey Scott McKayMarch 13, 202627 min read

LitigationFederal Practice

Justiciability Toolkit: Standing Allegations, Rule 12(b)(1) Motions, and Mootness Briefing

This toolkit collects the documents a justiciability practice produces: standing allegations that plead harm rather than violation, the historical analogue paragraph that most complaints omit, facial and factual Rule 12(b)(1) motion outlines, the custodian declaration that converts a pleading argument into an evidentiary one, targeted standing discovery, the class certification brief built on sampling evidence, a covenant not to sue drafted broadly enough to moot a case, and the decision framework defendants should run before filing anything. Each template is annotated with its purpose, its owner, and the failure it prevents. Each template carries drafting notes on the difference between a facial and a factual attack and what each requires. Adapt everything to the claim, the relief sought, and the procedural posture. The standing allegation templates in particular should be adapted claim by claim rather than used as a block.

Casey Scott McKayMarch 12, 202611 min read

LitigationFederal Practice

Standing and Justiciability Checklist: A Practical Checklist

Standing is the first question in every federal case and the one most often litigated carelessly. This checklist runs it from both sides: the strategic decision that should precede any challenge, pleading concrete injury with the historical analogue identified, choosing between facial and factual attacks, the narrow discovery that resolves it, deploying it at class certification where it does the most work, and preserving it through appeal. Separate sections cover mootness and voluntary cessation, ripeness, organizational and associational standing, the removal trap, and practice-area-specific problems. It covers injury, traceability, redressability, mootness, ripeness, and the standing of each named plaintiff for each form of relief. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayMarch 11, 20267 min read

LitigationFederal Practice

Pleading and Attacking Standing in Federal Court: A Practical Guide

Standing is litigated badly more often than any other threshold issue, usually because one side treats it as a checklist and the other treats it as unavoidable. This guide sets out how to do it well from both sides: pleading concrete injury with the historical analogue identified, choosing between facial and factual attacks and when each is worth making, taking the narrow discovery that resolves it, deploying standing at class certification where it does the most work, and — the decision most often skipped — determining whether winning is actually good for the client, given that dismissal is without prejudice and state courts frequently apply looser rules. It covers the plaintiff's allegations, the defendant's Rule 12(b)(1) motion, the factual attack and its discovery consequences, and standing at the class certification stage. Worked examples show how the same facts read differently at the pleading stage and at summary judgment. It also addresses mootness, ripeness, and the strategic use of standing in removal practice.

Casey Scott McKayMarch 10, 202627 min read

LitigationFederal Practice

Article III Standing After TransUnion: Concrete Injury, Traceability, and the End of No-Injury Claims

Standing is the first question in every federal case and the last defense many cases never survive, and the Supreme Court's decision in TransUnion changed what a statutory violation must show to get into federal court. This article explains the doctrine as it now operates: the three constitutional elements, what makes an intangible harm concrete, the historical analogue test and how courts apply it, and the requirement that every class member — not merely the named plaintiff — have standing for damages. It covers mootness and ripeness, organizational and associational standing, and the strategic consequence that most often surprises defendants, which is that winning on standing frequently sends the case to state court rather than ending it. It traces how the concreteness requirement reshaped statutory damages litigation, class certification, and removal strategy. It closes with what a standing allegation has to look like now.

Casey Scott McKayMarch 9, 202627 min read

LitigationDiscovery

A Practical Discovery Refresher: Mastering the Tools, Rules, and Pitfalls of Federal Civil Litigation

Discovery is the backbone of federal civil litigation and the phase where cases are most often delayed, sanctions imposed, and professional relationships damaged. This guide is a comprehensive, practical refresher on the core tools available under the Federal Rules of Civil Procedure—public records requests, initial disclosures, interrogatories, requests for production, requests for admission, depositions, and third-party subpoenas—and on the objections, deficiency procedures, privilege practice, and document-handling protocols that surround them. It explains, in plain language and through a single running fact pattern, how to draft, respond, and object effectively, how to manage electronic discovery under the EDRM framework, and how the full Rule 37 sanctions machine actually works in practice. It incorporates the December 1, 2025 amendments to Rules 16 and 26 that move privilege-log planning to the outset of a case, and it is grounded throughout in primary authority and leading case law. Whether you are a seasoned litigator reviewing the fundamentals or a newer attorney or paralegal building a discovery practice, the aim is to help you conduct discovery efficiently, professionally, and in compliance with your ethical obligations.

Casey Scott McKayMarch 4, 202664 min read