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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. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

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