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Advisory Committee on Civil Rules Meeting Agenda ADVISORY COMMITTEE ON CIVIL RULES October 16, 2020 AGENDA Meeting of the Advisory Committee on Civil Rules October 16, 2020 OPENING BUSINESS 1. Report on the June Meeting of the Committee on Rules of Practice and Procedure • Draft Minutes of the June 23, 2020 Meeting of the Committee on Rules of Practice and Procedure ...........................................................................................19 2. Report on the September 2020 Session of the Judicial Conference of the United States • September 2020 Report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States (appendices omitted) ..................51 3. Status of Proposed Amendments to the Federal Rules • Chart Tracking Proposed Rules Amendments .......................................................77 4. Legislative Update • Pending Legislation that Would Directly or Effectively Amend the Federal Rules (116th Congress) ..........................................................................................85 ACTION ITEMS 5. Review and Approval of Minutes • Draft Minutes of the April 1, 2020 Meeting of the Advisory Committee on Civil Rules ........................................................................................................93 6. Proposed Amendment to Rule 7.1 (for Final Approval) ............................................133 7. Proposed Amendment to Rule 12(a) (for Publication) ...............................................145 INFORMATION ITEMS Matters Carried Forward 8. Multidistrict Litigation Subcommittee • Subcommittee Report .........................................................................................151 • Appendix A: Sketch of Possible Rule Approach .....................................171 Advisory Committee on Civil Rules | October 16, 2020 Page 3 of 392 • Appendix B: Subcommittee Conference Calls • Notes of September 10, 2020 Conference Call ............................175 • Notes of August 18, 2020 Conference Call .................................179 9. Appeal Finality After Consolidation Joint Civil-Appellate Subcommittee Report..............................................................................................................................191 10. CARES Act Subcommittee • Subcommittee Report .........................................................................................197 • Appendix: Subcommittee Conference Calls • Notes of September 11, 2020 Conference Call ............................215 • Notes of August 20, 2020 Conference Call .................................221 11. Rule 4(c)(3): Service by the U.S. Marshals Service ....................................................237 12. Rule 17(d): Naming Office in Official Capacity Cases ...............................................241 13. Rule 5(d)(3)(B): E-Filing by an Unrepresented Person ..............................................247 14. In Forma Pauperis Disclosures .....................................................................................251 15. E-Filing Deadline Joint Subcommittee ........................................................................255 INFORMATION ITEMS New Proposals 16. Rule 9(b): General Pleading of Malice, Intent, Etc. ....................................................259 • Suggestion 20-CV-Z (Spencer)............................................................................265 17. Rules 26(b)(5)(a) and 45(e)(2): Privilege Logs.............................................................311 • Suggestion 20-CV-R (Lawyers for Civil Justice) ................................................317 • Appendix: 2008 Advisory Committee Consideration ..........................................335 18. Rule 45: Nationwide Subpoena Service Statutes ........................................................353 • Suggestion 20-CV-H (Hong and Hawley) ...........................................................359 Advisory Committee on Civil Rules | October 16, 2020 Page 4 of 392 19. Sealing Court Records ...................................................................................................369 • Suggestion 20-CV-T (Volokh) (footnotes omitted) .............................................373 20. Rule 15(a): Time for Pleading Amendments as a Matter of Course .........................377 • Suggestion 19-CV-Z (Spritzer) ............................................................................379 21. Rule 72(b): Clerk Mail or Serve ...................................................................................383 • Suggestion 20-CV-F (Barksdale) .........................................................................385 UPDATE 22. Mandatory Initial Discovery Pilot Project • Memorandum to the Advisory Committee from Jason A. Cantone and Emery G. Lee III Regarding Status of Mandatory Initial Discovery Pilot Study (August 24, 2020) .............................................................................389 Advisory Committee on Civil Rules | October 16, 2020 Page 5 of 392 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Civil Rules | October 16, 2020 Page 6 of 392 RULES COMMITTEES — CHAIRS AND REPORTERS Committee on Rules of Practice and Procedure (Standing Committee) Chair Reporter Honorable John D. Bates Professor Catherine T. Struve United States District Court University of Pennsylvania Law School E. Barrett Prettyman U.S. Courthouse 3501 Sansom Street 333 Constitution Avenue, N.W. Philadelphia, PA 19104 Washington, DC 20001 Secretary Rebecca A. Womeldorf, Esq. Secretary, Standing Committee and Rules Committee Chief Counsel Administrative Office of the U.S. Courts Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-300 Washington, DC 20544 Advisory Committee on Appellate Rules Chair Reporter Honorable Jay S. Bybee Professor Edward Hartnett United States Court of Appeals Richard J. Hughes Professor of Law Lloyd D. George U.S. Courthouse Seton Hall University School of Law 333 Las Vegas Boulevard South, Suite 7080 One Newark Center Las Vegas, NV 89101-7065 Newark, NJ 07102 Effective: October 1, 2020 to December 31, 2020 Page 1 Revised: September 11, 2020 Advisory Committee on Civil Rules | October 16, 2020 Page 7 of 392 RULES COMMITTEES — CHAIRS AND REPORTERS Advisory Committee on Bankruptcy Rules Chair Reporter Honorable Dennis R. Dow Professor S. Elizabeth Gibson United States Bankruptcy Court University of North Carolina at Chapel Hill Charles Evans Whittaker U.S. Courthouse 5073 Van Hecke-Wettach Hall, C.B. #3380 400 East Ninth Street, Room 6562 Chapel Hill, NC 27599-3380 Kansas City, MO 64106 Associate Reporter Professor Laura B. Bartell Wayne State University Law School 471 W. Palmer Detroit, MI 48202 Advisory Committee on Civil Rules Chair Reporter Honorable Robert M. Dow, Jr. Professor Edward H. Cooper United States District Court University of Michigan Law School Everett McKinley Dirksen U.S. Courthouse 312 Hutchins Hall 219 South Dearborn Street, Room 1978 Ann Arbor, MI 48109-1215 Chicago, IL 60604 Associate Reporter Professor Richard L. Marcus University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102-4978 Effective: October 1, 2020 to December 31, 2020 Page 2 Revised: September 11, 2020 Advisory Committee on Civil Rules | October 16, 2020 Page 8 of 392 RULES COMMITTEES — CHAIRS AND REPORTERS Advisory Committee on Criminal Rules Chair Reporter Honorable Raymond M. Kethledge Professor Sara Sun Beale United States Court of Appeals Duke Law School Federal Building 210 Science Drive 200 East Liberty Street, Suite 224 Durham, NC 27708-0360 Ann Arbor, MI 48104 Associate Reporter Professor Nancy J. King Vanderbilt University Law School 131 21st Avenue South, Room 248 Nashville, TN 37203-1181 Advisory Committee on Evidence Rules Chair Reporter Honorable Patrick J. Schiltz Professor Daniel J. Capra United States District Court Fordham University United States Courthouse School of Law 300 South Fourth Street, Room 14E 150 West 62nd Street Minneapolis, MN 55415 New York, NY 10023 Effective: October 1, 2020 to December 31, 2020 Page 3 Revised: September 11, 2020 Advisory Committee on Civil Rules | October 16, 2020 Page 9 of 392 ADVISORY COMMITTEE ON CIVIL RULES Chair Reporter Honorable Robert M. Dow, Jr. Professor Edward H. Cooper United States District Court University of Michigan Law School Everett McKinley Dirksen U.S. Courthouse 312 Hutchins Hall 219 South Dearborn Street Ann Arbor, MI 48109-1215 Chicago, IL 60604 Associate Reporter Professor Richard L. Marcus University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102-4978 Members Honorable Jennifer C. Boal Honorable Ethan P. Davis* United States District Court Assistant Attorney General (ex officio) John Joseph Moakley U.S. Courthouse United States Department of Justice One Courthouse Way, Room 6400 950 Pennsylvania Ave., N.W. Boston, MA 02210-3002+ Washington, DC 20530 * Alternate Representative: Joshua E. Gardner, Esq. United States Department of Justice 1100 L Street, N.W., Suite 11502 Washington, DC 20005 Honorable Joan N. Ericksen Honorable Kent A. Jordan United States District Court United States Court of Appeals 300 South Fourth Street, Room 12W J. Caleb Boggs Federal Building Minneapolis, MN 55415 844 North King Street, Room 5100 Wilmington, DE 19801-3519 Honorable Thomas R. Lee Honorable Sara Lioi Associate Chief Justice United States District Court Utah Supreme Court John F. Seiberling Federal Building 450 South State, PO Box 140210 and U.S. Courthouse Salt Lake City, UT 84114-0210
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