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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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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