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Federal Bar Update: Dec. 1 rule changes now in effect

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Federal Bar UpdateAs previewed in prior columns, effective Dec. 1 various amendments took effect to the Federal Rules of Civil Procedure (as well as appellate, criminal, and evidence rules). Rule 26 was amended to apply work-product protection to the discovery of draft expert reports. Rule 56 amendments are significant but do not change summary judgment standards or burdens.

When federal rules are amended, pursuant to 28 U.S.C. § 2074, the amended “rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.”

As the Supreme Court has done in prior years, with these amendments the court stated in its amendment order that the “foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2010, and shall govern all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.”

Thus, the new rules apply to all new cases from Dec. 1 forward and to all pre-existing cases to the extent “just and practicable.” Courts typically look to “undue prejudice” in applying this standard. With respect to the current amendments in Rules 26 and 56, it is expected that the amendments will apply to pending cases.

Proper ecf Filing – In Green Mountain Financial Fund v. LaCroix, No. 1:09-CV-1216-SEB-TAB (Nov. 22, 2010), plaintiff filed a motion for summary judgment along with 16 supporting exhibits. The court struck the filing with leave to re-file for failure to comply with Local Rule 5.6 and paragraph 13 of the CM/ECF Policy and Procedure Manual, which states, “When uploading attachments during the electronic filing process … a brief description must be entered for each individual PDF file. The description must include not only the exhibit number or letter, but also a brief description of the document itself.”

In Green Mountain, plaintiff had labeled the supporting exhibits “A,” “B,” “C,” etc., but did not describe the exhibits. The court noted, “For example, Exhibit A might have been described as ‘Legal Description: Tract 1.’ Exhibit B might have been described as ‘Note, July 10, 2007.’” The court added, “When voluminous exhibits are not properly described, it is difficult and burdensome for the Court and other parties to this lawsuit to locate the exhibits electronically.” Accordingly, the court struck the filing with leave to re-file seven days later and tolled the responding parties’ response brief until such re-filing. •

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John Maley (jmaley@btlaw.com) is a partner with Barnes & Thornburg practicing federal and state litigation, employment matters, and appeals. The opinions expressed in this column are the author’s.

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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