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. •


John Maley ( 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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...