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ADVISORY COMMITTEE ON CIVIL RULES Norman, OK April 11-12, 2013 THIS PAGE INTENTIONALLY BLANK TABLE OF CONTENTS AGENDA ...................................................................................................................................... 7 TAB 1 Opening Business A. ACTION ITEM: Draft Minutes of November 2012 Civil Rules Meeting .................................................................................................. 23 B. Draft Minutes of January 2012 Standing Committee Meeting ......... 51 TAB 2 ACTION ITEM: Duke Conference Subcommittee Proposal to Recommend Publication of Amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37 A. Reporter’s Memorandum Regarding Duke Conference Subcommittee Rules Package .............................................................. 77 Rules Package ........................................................................................ 89 Rules Text .............................................................................................. 99 B. Notes of Duke Subcommittee Conference Call (February 1, 2013)............................................................................... 107 C. Notes of Duke Subcommittee Conference Call (March 1, 2013) ................................................................................... 117 D. Memorandum from Emery G. Lee III Regarding Deposition Counts (March 15, 2013) .................................................................... 125 E. Memorandum from Ted Hirt to Edward H. Cooper Responding to Questions Concerning Recommendation of Justice Department to Clarify Rule 4(m) (March 22, 2013) ........................ 137 TAB 3 ACTION ITEM: Revisions of Rule 37(e) as Approved for Publication A. Reporter’s Memorandum Regarding Rule 37(e) ............................. 143 Rule Text .............................................................................................. 152 Possible Alternative Rule 37(e) .......................................................... 160 Issues on Which Public Comment Can Be Invited .......................... 163 B. Notes of Discovery Subcommittee Conference Call (November 28, 2012) ........................................................................... 167 April 11-12, 2013 Page 3 of 322 C. Notes of Discovery Subcommittee Conference Call (February 12, 2012)............................................................................. 195 D. Notes of Discovery Subcommittee Conference Call (February 18, 2013)............................................................................. 205 TAB 4 Rule 84 and Forms A. Reporter’s Memorandum Regarding Rule 84 ................................. 219 B. Memorandum from Andrea L. Kuperman to Judge Gene E.K. Pratter Discussing Potential Effects of Case Law Under Rule 84 if Rule 84 is Abrogated (July 6, 2013) ............................................... 223 TAB 5 Pleading Reporter’s Memorandum Regarding Pleading ............................................. 251 TAB 6 Rule 23 Reporter’s Memorandum Regarding Rule 23............................................... 255 TAB 7 Emerging Topics A. Rule 17(c)(2) ........................................................................................ 263 Powell v. Symons, 680 F.3d 301 (3d Cir. 2012) ................................. 266 B. Rule 41(a)(1)(A)(ii) .............................................................................. 279 Johnson v. Wyeth LLC, et al., No. CV 10-2690-PHX-FJM (D. Ariz.) (Order Entered July 5, 2012) ............................................ 281 C. Referrals from the Committee on Court Administration and Case Management ............................................................................... 287 Letter from Judge Julie A. Robinson to Judge Mark R. Kravitz Regarding Referral of CM/ECF Policy Issues to the Rules Committees (August 20, 2012) ........................................................... 289 Letter from Chief Judge David Bryan Sentelle to Judge Julie A. Robinson Regarding the Expanded Use of Video Conferencing Technology (January 14, 2013) .......................................................... 292 April 11-12, 2013 Page 4 of 322 Letter from Judge Julie A. Robinson to Judge Jeffrey Sutton Regarding Referral of CM/ECF Policy Issues to the Rules Committees (January 16, 2013) ......................................................... 293 D. Rule 62 ................................................................................................. 297 Memorandum from Professor Catherine T. Struve, Reporter, to the Advisory Committee on Appellate Rules (August 29, 2012)................................................................................. 298 E. International Child Abduction: Prompt Return .............................. 317 Memorandum from Benjamin J. Robinson to Edward H. Cooper Regarding Background on Judicial Conference Position Opposing Fixed Civil Litigation Deadlines (rev. Oct. 3, 2012) ....... 319 April 11-12, 2013 Page 5 of 322 THIS PAGE INTENTIONALLY BLANK April 11-12, 2013 Page 6 of 322 Agenda April 11-12, 2013 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: Report of Duke Conference Subcommittee: Proposal to Recommend Publication, Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37 Report on Employment Case Discovery Protocol 5. Panel Presentation: "Technology Assisted Review" 6. ACTION ITEM: Revisions of Rule 37(e) as approved for publication 7. Rule 84 and Forms: Rule 84 Subcommittee Report 8. Pleading 9. Rule 23 Subcommittee Report 10. Emerging Topics: Rule 17(c)(2) Rule 41(a)(1)(A)(ii) Dismissal Without Prejudice CACM Referrals: Videoconference Hearings Database for "restricted filers" Notice of Electronic Filing as Certificate of Service "Wet Signature" Records Rule 62 Appeal Bonds International Child Abduction: Prompt Return Next Meeting: November 7-8, 2013, Washington D.C. April 11-12, 2013 Page 7 of 322 THIS PAGE INTENTIONALLY BLANK April 11-12, 2013 Page 8 of 322 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 Parker C. Folse, Esq. Susman Godfrey LLP 1201 Third Avenue, Suite 3800 Seattle, WA 98101 2 s 1 Revised:Effective: March October13 1, 201 AdvisoryApril 11-12, 2013 Committee on Civil Rule PagePage 9 of 322 , 2013 Members, Advisory Committee Honorable Paul W. Grimm on Civil Rules (cont’d.) 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 Michael W. Mosman United States District Court Mark O. Hatfield United States Courthouse 1000 Southwest Third Avenue, Room 1615 Portland, OR 97204-2802 Honorable David E. Nahmias Supreme Court of Georgia 244 Washington Street Room 572, State Office Annex Building Atlanta, GA 20224 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 2 s 2 Revised:Effective: March October13 1, 201 AdvisoryApril 11-12, 2013 Committee on Civil Rule Page Page10 of 322 , 2013 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 7614 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 Diane P. Wood (Standing) United States Court of Appeals 2688 Everett McKinley Dirksen U.S. Courthouse 219 South Dearborn Street Chicago, IL 60604 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
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