John Barkett

Experience

Mr. Barkett is a partner at the law firm of Shook, Hardy & Bacon L.L.P. in its Miami office. He is a graduate of the University of Notre Dame (B.A. Government, 1972, summa cum laude) and the Yale Law School (J.D. 1975) and served as a law clerk to the Honorable David W. Dyer on the old Fifth Circuit Court of Appeals. Mr. Barkett is an adjunct professor of law at the University of Miami School of Law. Mr. Barkett was a member of the Advisory Committee for Civil Rules of the Federal Judicial Conference from 2012-18, and served on the Discovery Subcommittee that developed the December 1, 2015 amendments to the rules, the Rule 23 Subcommittee that developed the 2018 amendments to Rule 23, and the Rule 30(b)(6) and MDL subcommittees. In August 2019, he completed service for the second time as a member of the American Bar Association Standing Committee on Ethics and Professional Responsibility. He is also a member of the American Law Institute. He is a fellow of the College of Commercial Arbitrators, the American College of Civil Trial Mediators, and the American College of Environmental Lawyers. In 2019, Mr. Barkett was awarded a Lifetime Achievement Award by the Miami Daily Business Review at its annual legal Professional Excellence awards dinner. Mr. Barkett is a commercial (contract, corporate, and banking disputes, employment, trademark, and antitrust) and environmental lawyer (CERCLA, RCRA, and toxic tort) having handled scores of complex and simple litigation matters in Federal and state courts or before an arbitration tribunal. Mr. Barkett is also a problem solver, serving as an arbitrator, mediator, facilitator, or allocator in a variety of commercial, environmental, and reinsurance contexts. He is a certified mediator under the rules of the Supreme Court of Florida and the Southern and Middle Districts of Florida and a member of the London Court of International Arbitration and the International Council for Commercial Arbitration, and serves on the AAA and ICDR roster of neutrals, and the CPR Institute for Dispute Resolution’s “Panel of Distinguished Neutrals.” He has served or is serving as a neutral in scores of matters involving in the aggregate more than $4 billion. He has conducted or is conducting commercial domestic and international arbitrations under AAA, LCIA, ICDR, UNCITRAL, and CPR rules. Mr. Barkett chairs the Miami International Arbitration Society (MIAS) “Task Force on Issues Related to Expedited Arbitration in connection with the UNCITRAL Rules and wrote several reports that were received favorably by the delegates to Working Group II and the UNCITRAL Secretariat in connection with the development of Expedited Arbitration Rules that were finalized in July 2021. In November 2003, Mr. Barkett was appointed by the presiding judge to serve as the Special Master to oversee the implementation and enforcement of the 1992 Consent Decree between the United States and the State of Florida relating to the multi-billion dollar restoration of the Florida Everglades. He has also served as a Special Master for judges on the Southern District of Florida or the Miami-Dade County Circuit Court to address a wide variety of discovery and e-discovery issues in complex litigation.

License(s)

Florida Bar, (1975)

Education

University of Notre Dame (B.A. Government, 1972 (summa cum laude; phi beta kappa) Yale University Law School (J.D. 1975)

Publications

 Rulemaking Nightmares (ACOEL Blog Post, October 6, 2021)  The Roberts Court 2020-2021: ACB for RBG, New Alliances, New Challenges for JGR (ABA Annual Meeting, August 2021)  Ethical Issues in Cross-Border Internal Investigations (ABA National Institute on Cross-Border Discovery, July 23, 2021)  The Ethics of Lawyers in Need of Assistance (Updated paper, ABA Section of Litigation Annual Conference, Houston, 2021)  Superfund Year in Review, (ABA Section of Environment, Energy, and Resources) (co-author, January 2021)  A Florida Focus on a Key Practice Issue: Mediator Evaluation That Preserves Self-Determination and Impartiality, 39 Alternatives 43 (March 2021)  A Mediator’s Dilemma: Evaluating Without Compromising Self-Determination or Impartiality, 39 Alternatives 25 (February 2021)  The Roberts Court 2019-2020: Distancing from the Kennedy Era, the Roberts Era Has Begun, (ABA Annual Meeting, August 2020)  CERCLA Allocation: Discretion Rules Yet Again (ABA Section of Litigation Environmental Committee Newsletter, Winter 2020)  Securing Law Firm Data: When the Advice Givers Need Advice (ABA Section of Litigation CLE Program, Aspen, Colo. January 2020, updating an earlier paper)  Superfund: 20+20 = 40 (Blog Posting, American College of Environmental Lawyers, January 2020)  Superfund Year in Review, (ABA Section of Environment, Energy, and Resources) (co-author, January 2020)  The Roberts Court 2018-19: Avoiding the Limelight After the Kavanaugh-Kennedy Trade (ABA Webinar, August 5, 2019)  Securing Law Firm Data: When the Advice Givers Need Advice (ABA Cross Border Discovery National Institute, Berlin, July 2019) (updating a paper first presented at the ABA National Institute on E-Discovery, May 15, 2015, New York)  Attorney-Client Privilege, 45 Litigation Journal 34 (Winter 2019)  Superfund Year in Review, (ABA Section of Environment, Energy, and Resources) (co-author, January 2019)  Trinity Industries v. Greenlease: Allocation Roulette Under CERCLA? 76 Chem. Waste. Lit. Reporter 11 (November 2018)  The 2018 Amendments to the Federal Class Action Rule (ABA Section of Litigation Annual Conference, San Diego, May 3, 2018; ABA National Institute on Class Actions, Chicago, October 2018)  The Roberts Court 2017-18: A Return to the Norm Before Wading Into a New Era (ABA Webinar, August 2018)  Arbitration and the Unauthorized Practice of Law, 36 Alternatives 83 (June 2018)  Practice Focus: The Duty of Candor, Inadvertent Production of Documents, and Your Arbitration Work, 36 Alternatives 51 (April 2018)  Superfund Year in Review, (ABA Section of Environment, Energy, and Resources) (co-author, January 2018)  The Roberts Court 2016-17: A Quiet Term, or the Calm Before the Storm? (ABA Webinar, August 16, 2017)  College of Commercial Arbitrators: Guide to Best Practices in Commercial Arbitration (4th Ed.) (co-author, Chapter 8 – “Discovery” and Chapter 9 – “Summoning Nonparty Witnesses”) (Juris Net, LLC 2017)  Refresher Ethics: Cross Border Issues (ABA National Institute on Cross Border Discovery, Munich, Germany, July 26, 2017)  The Future of the Attorney Client Privilege and Work Product Protection, (ABA National Institute on Cross Border Discovery, Munich, Germany, July 26, 2017 updated from ABA Litigation Section Annual Conference, San Francisco, May 5, 2017)  Arbitration Ethics: A Sampler (Shook, Hardy & Bacon Update on the Law, Kansas City, Missouri, June 22, 2017 updated from a paper presented at the CPR Annual Meeting, Miami, March 3, 2017)  Work Product Protect for Draft Expert Reports and Attorney-Expert Communications (Environmental & Energy Litigation Committee, Section of Litigation, May 30, 2017)  Lawyer Ethics: E-Communications, Social Media, and the Internet, (ABA Eleventh Annual National Institute on E-Discovery, Chicago, May 11, 2017 updated from DePaul University Law School, Clifford Law Offices Ethics Webinar livestreamed to over 4,000 registrants, Feb. 16, 2017)  Arbitration Ethics: The Duty of Candor, the Unauthorized Practice of Law, and Inadvertent Production of Privileged or Protected Documents (CPR Annual Meeting, Miami, March 3, 2017)  Superfund Year in Review, (ABA Section of Environment, Energy, and Resources) (co-author, January 2017)  The 2015 Civil Rules Amendments: One Year Later (ABA Center for Professional Responsibility Webinar, December 15, 2016)  Do Arbitrators Have Sanctions Authority in Domestic Arbitrations? Daily Business Review, November 17, 2016.  Refresher Civil Procedure: Cost-Shifting Under the Federal Rules (Georgetown Advanced E-Discovery Institute, Washington D.C., November 10, 2016)  Class Action Reform, 31 N.R.E. 54 (Fall 2016)  The Roberts Court 2015-16: An Untimely Death and Its Impacts (ABA Annual Meeting, San Francisco, August 5, 2016)  Antonin Scalia: A Retrospective (Shook, Hardy & Bacon Update on the Law, Kansas City, June 23, 2016)  The First 100 Days (or so) of the 2015 Civil Rules Amendments (Bloomberg BNA Digital Discovery and e-Evidence, 16 DDEE 178 (April 14, 2016) adapted from a longer piece by the same title at http://src.bna.com/d6z.  The First 100 Days (or so) of the 2015 Civil Rules Amendments, (Bloomberg BNA Digital Discovery & Evidence Report, April 14, 2016)  Cheap Talk? Witness Payments and Conferring with Testifying Witnesses (ABA Webinar, October 2015)  Ethics in ADR: A Sampling of Issues (ABA Webinar, September 30, 2015)  The Roberts Court 2014-15: Individual Rights, Voting Rights, Fair Housing, and the Importance of (Con)Text (ABA Annual Meeting, Chicago, July 31, 2015)  Securing Law Firm Data: When the Advice Givers Need Advice (ABA National Institute on E-Discovery, May 15, 2015, New York)  Arbitration: Hot Questions, Cool Answers (ABA Section of Litigation Annual Conference, New Orleans, April 2015)  Work Product Protection for Draft Expert Reports and Attorney-Expert Communications (ABA Section of Litigation Annual Conference, New Orleans, April 2015)  Cheap Talk? Witness Payments and Conferring with Testify Witnesses (ABA Webinar, October 2014, updating a presentation first made at the ABA Annual Meeting, Chicago, 2009)  Ethics in ADR: A Sampling of Issues (ABA Webinar September 2014 updating an October 31, 2013 webinar for the Professional Education Broadcast Network))  The Roberts Court 2013-14: First Amendment, Equal Protection, Privacy, and More (or Less) Unanimity (ABA Annual Meeting, Boston, August 7, 2014)  Chess Anyone? Selection of International Commercial Arbitration Tribunals (Miami-Dade County Bench and Bar Conference, February 8, 2013 updated for Shook, Hardy & Bacon Annual Update on the Law, June 25, 2014, Kansas City)  Perspectives on the New York Convention Under the Laws of the United States (co-authored with F. Cruz-Alvarez; M. Paulsson, and S. Pagliery) (International Council For Commercial Arbitration 22nd Biennial Congress, April 8, 2014, Miami, Florida)  New Rule 45, 28 N.R.E. 50 (Spring 2014)  Refresher Ethics: Steering Clear of Witness Minefields (with Green, Bruce; Sandler, Paul Mark) (Professional Education Broadcast Network Webinar, May 16, 2014)  The Roberts Court 2012-13, DOMA, Voting Rights, Affirmative Action, More Consensus, More Dissent (ABA Annual Meeting, San Francisco, August 10, 2013)  Ethical Challenges on the Horizon: Confidentiality, Competence and Cloud Computing (ABA-CLE, July 24, 2012; updated, ABA Section of Litigation Annual Conference, Chicago, April 25, 2013)  Work Product Protection for Draft Expert Reports and Attorney-Expert Communications (forthcoming) (ABA Section of Litigation Annual Conference, Chicago, April 26, 2013)  Lawyer-Client Fallout: Using Privileged Information To Establish A Claim Against a Client/Employer (forthcoming) (ABA Section of Litigation Annual Conference, Chicago, April 25, 2013)  More on the Ethics of E-Discovery: Predictive Coding and Other Forms of Computer-Assisted Review (Duke Law School, Washington D.C., April 19, 2013)  Evidence Rule 502: The Solution to the Privilege-Protection Puzzle in the Digital Era, 81 Fordham L. Rev. 1589 (March 2013)  Neighborly RCRA Claims, 27 N.R.E. 48 (Spring 2013)  The Roberts Court 2011-12: The Affordable Care Act and More (ABA Annual Meeting, Chicago, August 3, 2012)  Un-taxing E-Discovery Costs: Section 1920(4) After Race Tire Amer. Inc. and Taniguchi (June 29, 2012) (http://www.shb.com/attorneys/BarkettJohn/UntaxingEdiscoveryCosts.pdf)  ABA to Tackle Technology Issues in Model Rules at August Meeting, (http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202560335059&thepage=3&slreturn=1) Law Technology News, June 25, 2012)  E-Communications: Problems Posed by Privilege, Privacy, and Production (ABA National Institute on E-Discovery, New York, NY, May 18, 2012)  The 7th Circuit Pilot Project: What We Might Learn And Why It Matters to Every Litigant in America (ABA Section of Litigation News Online, December 11, 2011) http://apps.americanbar.org/litigation/litigationnews/civil_procedure/docs/barkett.december11.pdf  Skinner, Matrixx, Souter, and Posner: Iqbal and Twombly Revisited, 12 The Sedona Conference Journal 69 (2011) (Mr. Barkett received the Burton Award for Legal Achievement for this paper)  The Challenge of Electronic Communication, Privilege, Privacy, and Other Myths, 38 Litigation Journal 17 (ABA Section of Litigation, Fall 2011)  Avoiding the Cost of International Commercial Arbitration: Is Mediation the Solution? in Contemporary Issues in International Arbitration and Mediation – The Fordham Papers (Martinus Nijhoff, New York. 2011)  The Roberts Court 2010-11: Three Women Justices! (ABA Annual Meeting, Toronto, August 2011)  The Ethics of Web 2.0, (ACEDS Conference, Hollywood, FL March 2011)  The Roberts Court: Year Four, Welcome Justice Sotomayor (ABA Annual Meeting, San Francisco, August 2010)  The Myth of Culture Clash in International Commercial Arbitration (co-authored with Jan Paulsson), 5 Florida International University Law Review 1 (June 2010)  Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal Litigation? (Duke 2010 Conference, Civil Rules Advisory Committee, May 11, 2010) (http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/John%20Barkett,%20Walking%20the%20Plank.pdf)  Zubulake Revisited: Pension Committee and the Duty to Preserve (Feb. 26, 2010) (http://www.abanet.org/litigation/litigationnews/trial_skills/pension-committee-zubulake-ediscovery.html)  Draft Reports and Attorney-Expert Communications, 24 N.R.E. (Winter 2010)  From Canons to Cannon in A Century of Legal Ethics: Trial Lawyers and the ABA Canons of Professional Ethics (American Bar Association, Chicago, 2009)  The Robert’s Court: Three’s a Charm (ABA Annual Meeting, Chicago, August 2009)  Cheap Talk? Witness Payments and Conferring with Testify Witnesses (ABA Annual Meeting, Chicago, 2009)  Burlington Northern: The Super Quake and Its Aftershocks, 58 Chemical Waste Lit. Rprt. 5 (June 2009)  Fool’s Gold: The Mining of Metadata (ABA’s Third Annual National Institute on E-Discovery, Chicago, May 22, 2009)  More on the Ethics of E-Discovery (ABA’s Third Annual National Institute on E-Discovery, Chicago, May 22, 2009)  Production of Electronically Stored Information in Arbitration: Sufficiency of the IBA Rules in Electronic Disclosure in International Arbitration (JurisNet LLC, New York, September 2008)  The Robert’s Court: The Terrible Two’s or Childhood Bliss? (ABA Annual Meeting, New York, August 2008)  Orphan Shares, 23 NRE 46 (Summer 2008)  Tipping The Scales of Justice: The Rise of ADR, 22 NRE 40 (Spring 2008)  Tattletales or Crimestoppers: Disclosure Ethics Under Model Rules 1.6 and 1.13 (ABA Annual Meeting, Atlanta, August 7, 2004 and, in an updated version, ABA Tort and Insurance Practice Section Spring CLE Meeting, Phoenix, April 11, 2008)  E-Discovery For Arbitrators, 1 Dispute Resolution International Journal 129, International Bar Association (Dec. 2007)  The Roberts Court: Where It’s Been and Where It’s Going (ABA Annual Meeting, San Francisco, August 2007)  Help Has Arrived…Sort Of: The New E-Discovery Rules, ABA Section of Litigation Annual Meeting, San Antonio (2007)  Refresher Ethics: Conflicts of Interest, (January 2007 ABA Section of Litigation Joint Environmental, Products Liability, and Mass Torts CLE program)  Help Is On The Way…Sort of: How the Civil Rules Advisory Committee Hopes to Fill the E-Discovery Void, ABA Section of Litigation Annual Meeting, Los Angeles (2006)  The Battle for Bytes: New Rule 26, e-Discovery, Section of Litigation (February 2006)  Forward to the Past: The Aftermath of Aviall, 20 N.R.E. 27 (Winter 2006)  The Prelitigation Duty to Preserve: Lookout! ABA Annual Meeting, Chicago (2005)  The MJP Maze: Avoiding the Unauthorized Practice of Law (2005 ABA Section of Litigation Annual Conference)  Bytes, Bits and Bucks: Cost-Shifting and Sanctions in E-Discovery, ABA Section of Litigation Annual Meeting (2004) and 71 Def. Couns. J. 334 (2004)  The CERCLA Limitations Puzzle, 19 N.R.E. 70 (Fall, 2004)  If Terror Reigns, Will Torts Follow?, 9 Widener Law Symposium 485 (2003)