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Federal Bar Update: Minor rule changes and attorney-client privilege

October 22, 2014

FedBarMaley-sigAny amendments to various federal rules always take effect Dec. 1. Some years there are significant changes, other years few or no amendments are in play.

This December is very modest in terms of federal rule amendments. Highlights are as follows:

First, Federal Rule of Appellate Procedure 6 will change appeals to the Courts of Appeals in bankruptcy cases. The amended rule will (1) update cross-references to the Bankruptcy Rules; (2) amend Rule 6(b)(2)(A)(ii) to remove an ambiguity from the restyling amendments; (3) add a new Rule 6(c) to address permissive direct appeals from the Bankruptcy Court; and (4) revise Rule 6 to take account of the range of methods available for dealing with the record on appeal.

Second, various amendments will take effect to the Bankruptcy Rules, including Rules 1014, 7004, 7008, 7054, 8001–8028, 9023, [and] 9024, and Official Forms 3A, 3B, 6I, 6J, 6 Summary, 23 and 27. These are all specific to bankruptcy matters and beyond the scope and focus of this column, but are noted for bankruptcy practitioners.

Third, on the Federal Rules of Civil Procedure front, a technical amendment will take effect in Rule 77. The amendment corrects a cross-reference to Rule 6(a) that should have been changed when Rule 6(a) was amended in 2009. Prior to those amendments, Rule 6(a)(4)(A) defined “legal holiday” to include 10 days set aside by statute, and Rule 77(c)(1) incorporated this definition by cross-reference. After the 2009 amendment, the statute-based definition of legal holidays remained unchanged, but became Rule 6(a)(6)(A). Thus, the amendment corrects the cross-reference to refer to Rule 6(a)(6)(A), as follows:

FRCP 77(c) Clerk’s Office Hours; Clerk’s Orders.

(1) Hours. The clerk’s office — with a clerk or deputy on duty — must be open during business seven hours every day except Saturdays, Sundays and legal holidays. But a court may, by local rule or order, require that the office be open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6(a)(6)(A).

Privilege Decision

In Hamdan v. Indiana University Health North, LLC, 1:13-CV-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097 (S.D. Ind. June 24, 2014), Magistrate Judge Mark Dinsmore addressed a motion to compel in a discrimination case. The opinion addresses a variety of important attorney-client privilege and work-product issues after in camera review, and serves as a good primer.

Most noteworthy, the court ruled that some emails that merely copied attorneys were not protected, writing, “The emails are between non-attorney employees, discussing non-legal matters, and none of the emails represent work performed by or at the direction of attorneys.”

By contrast, another thread of emails was protected, with the following explanation: “The final chain of email correspondence that contains messages redacted by Defendants, dated March 28-29, 2011, begins with the Hospital’s custodian of personnel records asking the chief medical officer how to proceed when the Plaintiff requested his file. The chief medical officer defers to in-house counsel and explicitly asks in-house counsel for advice. The emails that follow clarify the issue and further ask for explicit instructions from the attorney, who responds with her advice. The nature of the correspondence makes it clear that legal advice was sought from the attorney included in the chain of correspondence and the entire line of communications was related to that purpose and made in confidence by the client. Based on its in camera review of the March 28-29, 2011, correspondence, the Court finds that the criteria outlined by the Seventh Circuit in Sandra have been met, and the correspondence is protected from discovery by attorney-client privilege.”

Save the date

The 2014 annual federal civil practice seminar sponsored by the Federal Bar Association will return Dec. 19; mark your calendars and register online at www.theindianalawyer.com. Speakers this year include Chief Judge Richard Young; Magistrate Judges Debra Lynch and Denise LaRue; Clerk Laura Briggs and U.S. Attorney’s Office Civil Chief Jill Jillian, all from the Southern District of Indiana; and District Judge Robert L. Miller Jr. from the Northern District of Indiana.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.

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