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Advisory Committee on Civil Rules ADVISORY COMMITTEE ON CIVIL RULES Portland, OR April 10-11, 2014 TABLE OF CONTENTS AGENDA ...................................................................................................................................... 5 TAB 1 Opening Business A. ACTION ITEM: Draft Minutes of November 2013 Civil Rules Meeting .................................................................................................. 21 B. Draft Minutes of January 2014 Standing Committee Meeting ......... 43 TAB 2 ACTION ITEM: Recommend Adoption of Duke Conference Package (Amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37) A. Report of the Duke Conference Subcommittee .................................. 79 Rules Package ........................................................................................ 95 Rules Text ............................................................................................ 109 Notes of Duke Conference Subcommittee Meeting (February 7, 2014)............................................................................... 115 Notes of Duke Conference Subcommittee Conference Call (March 3, 2014) ................................................................................... 128 B. Reporter’s Summary of Public Comments Received ............................. 139 TAB 3 ACTION ITEM: Recommend Adoption of Rule 37(e) A. Report of the Discovery Subcommittee ............................................. 369 Rule Text .............................................................................................. 383 Published Rule 37(e) Amendment Proposal ..................................... 393 B. Notes of Meetings and Conference Calls Notes of Discovery Subcommittee Meeting (February 8, 2014)............................................................................... 405 Notes of Discovery Subcommittee Conference Call (February 20, 2014)............................................................................. 419 Notes of Discovery Subcommittee Conference Call (February 25, 2014)............................................................................. 425 April 10-11, 2014 Page 3 of 580 Notes of Discovery Subcommittee Conference Call (February 28, 2014)............................................................................. 431 Notes of Discovery Subcommittee Conference Call (March 4, 2014) ................................................................................... 437 Notes of Discovery Subcommittee Conference Call (March 12, 2014) ................................................................................. 443 C. Reporter’s Summary of Public Comments Received ...................... 453 TAB 4 ACTION ITEM: Recommend Adoption of Rules 6(d) and 55(c) A. Rule 6(d) .............................................................................................. 541 Reporter’s Summary of Public Comments Received ...................... 543 B. Rule 55(c) ............................................................................................. 547 Reporter’s Summary of Public Comments Received ...................... 549 TAB 5 ACTION ITEM: Recommend Abrogation of Rule 84 & Adoption of Rule 4 Amendments & Forms A. Report of the Rule 84 Subcommittee ................................................ 555 Notes of Rule 84 Subcommittee Conference Call (March 5, 2014) ................................................................................... 557 B. Reporter’s Summary of Public Comments Received ...................... 563 TAB 6 ACTION ITEM: Recommend Publication of Amended Rule 82 Reporter’s Memorandum Regarding Rule 82............................................... 569 TAB 7 ACTION ITEM: Recommend Publication of Amended Rule 4(m) Reporter’s Memorandum Regarding Rule 4(m)........................................... 575 TAB 8 INFORMATION ITEM Reporter’s Memorandum Regarding Proposal to Amend Rule 6(d) .......... 579 April 10-11, 2014 Page 4 of 580 Agenda April 10-11, 2014 Meeting of the Advisory Committee on Civil Rules 1. Welcome by the Chair Standing Committee Meeting and Judicial Conference 2. ACTION ITEM: Minutes for November meeting 3. Legislative Activity 4. ACTION ITEM: Recommend Duke Conference Rules for Adoption 5. ACTION ITEM: Recommend Rule 37(e) for Adoption 6. ACTION ITEMS: Recommend Rules 6(d), 55(c) for Adoption 7. ACTION ITEM: Recommend abrogation of Rule 84, adoption of Rule 4 amendments and forms 8. ACTION ITEM: Recommend publication of amended Rule 82 9. ACTION ITEM: Recommend publication of amended Rule 4(m) 10. INFORMATION ITEM: "3 days are added" 11. Report of Rule 23 Subcommittee (oral) April 10-11, 2014 Page 5 of 580 THIS PAGE INTENTIONALLY BLANK April 10-11, 2014 Page 6 of 580 ADVISORY COMMITTEE ON CIVIL RULES Chair, Advisory Committee on Civil Rules Honorable David G. Campbell United States District Court 623 Sandra Day O’Connor U.S. Courthouse 401 West Washington Street Phoenix, AZ 85003-2146 Reporter, Advisory Committee on Civil Rules Professor Edward H. Cooper University of Michigan Law School 312 Hutchins Hall Ann Arbor, MI 48109-1215 Professor Richard L. Marcus University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102-4978 Members, Advisory Committee on Civil Rules John M. Barkett, Esq. Shook, Hardy & Bacon L.L.P. 3200 Miami Center 201 S. Biscayne Blvd. Miami, Florida 33131 Elizabeth Cabraser, Esq. Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street - Suite 3000 San Francisco, CA 94111-3339 Honorable Stuart F. Delery Acting Assistant Attorney General Civil Division United States Department of Justice 950 Pennsylvania Avenue, N.W. - Room 3141 Washington, DC 20530 Honorable Paul S. Diamond United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 6613 Philadelphia, PA 19106 Honorable Robert Michael Dow, Jr. United States District Court Everett McKinley Dirksen U.S. Courthouse 219 South Dearborn Street, Room 1978 Chicago, IL 60604 April 10-11, 2014 Page 7 of 580 Members, Advisory Committee Parker C. Folse, Esq. on Civil Rules (cont’d.) Susman Godfrey LLP 1201 Third Avenue, Suite 3800 Seattle, WA 98101 Honorable Paul W. Grimm United States District Court United States Courthouse 6500 Cherrywood Lane Greenbelt, MD 20770 Peter D. Keisler, Esq. Sidley Austin, LLP 1501 K Street, N.W. Washington, DC 20005 Dean Robert H. Klonoff Dean & Professor of Law Lewis & Clark Law School 10015 S.W. Terwilliger Blvd. Portland, OR 97219-7799 Honorable John G. Koeltl United States District Court 1030 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007-1312 Honorable Scott M. Matheson, Jr. United States Court of Appeals Wallace F. Bennett Federal Building 125 South State Street, Room 5402 Salt Lake City, UT 84138 Honorable David E. Nahmias Supreme Court of Georgia Room 512, State Judicial Building Atlanta, GA 30334 Honorable Solomon Oliver, Jr. Chief Judge United States District Court Carl B. Stokes United States Courthouse 801 West Superior Avenue, Room 19A Cleveland, OH 44113 April 10-11, 2014 Page 8 of 580 Members, Advisory Committee Honorable Gene E. K. Pratter on Civil Rules (cont’d.) United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 10613 Philadelphia, PA 19106-1797 Liaison Members, Advisory Committee Honorable Arthur I. Harris (Bankruptcy) on Civil Rules United States Bankruptcy Court Howard M. Metzenbaum U.S. Courthouse 201 Superior Avenue, Room 148 Cleveland, OH 44114-1238 Honorable Neil M. Gorsuch (Standing) United States Court of Appeals Byron White United States Courthouse 1823 Stout Street, 4th Floor Denver, CO 80257-1823 Clerk of Court Representative, Laura A. Briggs Advisory Committee on Civil Rules Clerk of Court United States District Court 105 Birch Bayh Federal Building and U.S. Courthouse 46 East Ohio Street Indianapolis, IN 46204 Secretary, Standing Committee Jonathan C. Rose and Rules Committee Officer Secretary, Committee on Rules of Practice & Procedure and Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1820 Fax 202-502-1755 [email protected] Chief Counsel Andrea L. Kuperman Chief Counsel to the Rules Committees 11535 Bob Casey U.S. Courthouse 515 Rusk Ave. Houston, TX 77002-2600 Phone 713-250-5980 Fax 713-250-5213 [email protected] April 10-11, 2014 Page 9 of 580 Deputy Rules Committee Officer Benjamin J. Robinson and Counsel Deputy Rules Committee Officer and Counsel to the Rules Committees Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1516 Fax 202-502-1755 [email protected] April 10-11, 2014 Page 10 of 580 Advisory Committee on Civil Rules Members Position District/Circuit Start Date End Date David G. Campbell D Arizona Member: 2005 ---- Chair Chair: 2011 2014 John M. Barkett ESQ Florida 2012 2014 Elizabeth J. Cabraser ESQ California 2010 2016 Stuart F. Delery* DOJ Washington, DC ---- Open Paul S. Diamond D Pennsylvania (Eastern) 2009 2015 Robert Michael Dow, Jr. D Illinois (Northern) 2013 2016 Parker C. Folse ESQ Washington 2012 2015 Paul W. Grimm D Maryland 2009 2015 Peter D. Keisler ESQ Washington, DC 2008 2014 Robert Klonoff ACAD Oregon 2011 2014 John G. Koeltl D New York (Southern) 2007 2014 Scott M. Matheson, Jr. C Tenth Circuit 2012 2015 David E. Nahmias CJUST Georgia 2012 2015 Solomon Oliver, Jr. D Ohio (Northern) 2011 2014 Gene E.K. Pratter D Pennsylvania (Eastern)
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