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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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