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Advisory Committee on Evidence Rules ADVISORY COMMITTEE ON EVIDENCE RULES Portland, ME October 11, 2013 TABLE OF CONTENTS AGENDA ...................................................................................................................................... 5 TAB 1 OPENING BUSINESS A. Draft Minutes of May 2013 Meeting of the Evidence Rules Committee ............................................................................................. 19 B. Draft Minutes of June 2013 Meeting of the Standing Committee .... 37 TAB 2 PROPOSED AMENDMENTS APPROVED BY THE JUDICIAL CONFERENCE OF THE UNITED STATES A. Rule 801(d)(1)(B)................................................................................... 43 B. Rule 803(6) ............................................................................................. 49 C. Rule 803(7) ............................................................................................. 55 D. Rule 803(8) ............................................................................................. 59 TAB 3 POSSIBLE AMENDMENT OF RULE 803(16) Reporter’s Memorandum Regarding Hearsay Exception for Ancient Documents and its Applicability to ESI (September 15, 2013) ...................... 65 TAB 4 EFFECT OF CM/ECF ON RULES OF EVIDENCE Reporter’s Memorandum Regarding Amendment of Evidence Rules to Accommodate CM/ECF (July 1, 2013) ........................................................ 77 TAB 5 CRAWFORD V. WASHINGTON & WILLIAMS V. ILLINOIS Reporter’s Memorandum Regarding Federal Case Law Development After Crawford v. Washington — and After the Confusion of Williams v. Illinois (September 1, 2013) ........................................................... 95 October 11, 2013 Page 3 of 208 THIS PAGE INTENTIONALLY BLANK October 11, 2013 Page 4 of 208 ADVISORY COMMITTEE ON EVIDENCE RULES AGENDA FOR COMMITTEE MEETING Portland, Maine October 11, 2013 I. Opening Business Opening business includes: ! Approval of the minutes of the Spring, 2013 meeting; ! A report on the June, 2013 meeting of the Standing Committee; ! A welcome to a new member, Judge Livingston; ! An expression of thanks and gratitude to departing member Judge Brody; and ! A discussion about the Symposium on electronic evidence, taking place on the morning of the Committee meeting. II. Proposed Amendments to Rule 801(d)(1)(B) and Rules 803(6)-(8) The proposed amendments to Rule 801(d)(1)(B) and to Rules 803(6), (7), and (8) were approved by the Standing Committee and referred to the Judicial Conference. Barring any unforeseen developments, these amendments will become effective on December 1, 2014. The agenda book sets forth the rules and notes as they were approved by the Judicial Conference. III. Possible Amendment to Rule 803(16) The agenda book contains a memo on consideration of a possible amendment to Rule 803(16), the hearsay exception for ancient documents. The question addressed is whether the exception needs to be altered or abrogated in light of the fact that electronically stored information is widespread, does not degrade, and can be fairly easily stored for 20 years. 1 October 11, 2013 Page 5 of 208 IV. Review of Effect of CM/ECF on Evidence Rules A Subcommittee of the Standing Committee is investigating to what extent the national rules of procedure should be amended to accommodate electronic case filing and case management. The Reporter prepared a report to the Subcommittee on whether changes to the Evidence Rules might be necessary because of cm/ecf. That memo is set forth in the agenda book for the Committee’s information. V. Crawford Outline The agenda book contains the Reporter’s updated outline on cases applying the Supreme Court’s Confrontation Clause jurisprudence. VI. Privilege Project Professor Broun will provide an oral report on his project surveying the law of privilege. 2 October 11, 2013 Page 6 of 208 ADVISORY COMMITTEE ON EVIDENCE RULES Chair, Advisory Committee Honorable Sidney A. Fitzwater on Evidence Rules Chief Judge United States District Court Earle Cabell Federal Bldg. and U.S. Courthouse 1100 Commerce Street, Room 1528 Dallas, TX 75242-1310 Reporter, Advisory Committee Professor Daniel J. Capra on Evidence Rules Fordham University School of Law 140 West 62nd Street New York, NY 10023 Members, Advisory Committee Honorable Brent R. Appel on Evidence Rules Iowa Supreme Court Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, IA 50319 Edward C. DuMont, Esq. WilmerHale 1875 Pennsylvania Avenue, NW Washington, DC 20006 Honorable Stuart M. Goldberg Principal Associate Deputy Attorney General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. – Room 4208 Washington, DC 20530 A.J. Kramer, Esq. Federal Public Defender Indiana Plaza 625 Indiana Avenue, N.W. – Suite 550 Washington, DC 20004 Honorable Debra Ann Livingston United States Court of Appeals Thurgood Marshall United States Courthouse 40 Centre Street, Room 2303 New York, NY 10007-1501 October 11, 2013 Page 7 of 208 Members, Advisory Committee Honorable William K. Sessions III on Evidence Rules (cont’d.) United States District Court Federal Building 11 Elmwood Avenue, 5th Floor Burlington, VT 05401 Paul Shechtman, Esq. Zuckerman Spaeder LLP 1185 Avenue of the Americas, 31st Floor New York, NY 10036 Honorable John A. Woodcock, Jr. Chief Judge United States District Court Margaret Chase Smith Federal Building 202 Harlow Street, 3rd Floor Bangor, ME 04401-4901 Consultant, Advisory Committee on Professor Kenneth S. Broun Evidence Rules University of North Carolina School of Law CB #3380, Van Hecke-Wettach Hall Chapel Hill, NC 27599 Liaison Members, Advisory Committee Honorable Paul S. Diamond (Civil) on Evidence Rules United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 6613 Philadelphia, PA 19106 Honorable John F. Keenan (Criminal) United States District Court 1930 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007-1312 Honorable Richard C. Wesley (Standing) United States Court of Appeals Livingston County Government Center Six Court Street Geneseo, NY 14454-1043 October 11, 2013 Page 8 of 208 Liaison Members, Advisory Committee Honorable Judith H. Wizmur (Bankruptcy) on Evidence Rules (cont’d.) Chief Judge United States Bankruptcy Court Mitchell H. Cohen U.S. Courthouse 2nd Floor – 400 Cooper Street Camden, NJ 08102-1570 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] 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] October 11, 2013 Page 9 of 208 LIAISON MEMBERS Liaison for the Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Liaison for the Advisory Committee Judge Adalberto Jordan (Bankruptcy) on Appellate Rules Liaison for the Advisory Committee Roy T. Englert, Jr., Esq. (Standing) on Bankruptcy Rules Liaison for the Advisory Committee Judge Arthur I. Harris (Bankruptcy) on Civil Rules Liaison for the Advisory Committee Judge Diane P. Wood (Standing) on Civil Rules Liaison for the Advisory Committee Judge Marilyn L. Huff (Standing) on Criminal Rules Liaison for the Advisory Committee Judge Judith H. Wizmur (Bankruptcy) on Evidence Rules Liaison for the Advisory Committee Judge Paul S. Diamond (Civil) on Evidence Rules Liaison for the Advisory Committee Judge John F. Keenan (Criminal) on Evidence Rules Liaison for the Advisory Committee Judge Richard C. Wesley (Standing) on Evidence Rules October 11, 2013 Page 10 of 208 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS Jonathan C. Rose 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] Peter G. McCabe Assistant Director Office of Judges Programs Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-180 Washington, DC 20544 Phone 202-502-1800 Fax 202-502-1755 [email protected] Benjamin J. Robinson 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] Julie Wilson Attorney Advisor Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-250 Washington, DC 20544 Phone 202-502-3678 Fax 202-502-1766 [email protected] October 11, 2013 Page 11 of 208 James H. Wannamaker III Senior Attorney Bankruptcy Judges Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-254 Washington, DC 20544 Phone 202-502-1900 Fax 202-502-1988 [email protected] Scott Myers Attorney Advisor Bankruptcy Judges Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-250 Washington,
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