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Advisory Committee on Appellate Rules ADVISORY COMMITTEE ON APPELLATE RULES San Diego, CA May 2, 2017 TABLE OF CONTENTS MEETING AGENDA AND ROSTER............................................................................................... 6 TAB 1 TABLE OF AGENDA ITEMS (MAY 2017) ........................................................ 14 TAB 2 OPENING BUSINESS A. Action Item: Draft Minutes of the October 18, 2017 Meeting of the Advisory Committee on Appellate Rules .......................................... 20 B. Information Items: Draft Minutes of the January 2017 Meeting of the Committee on Rules of Practice and Procedure .................... 34 C. March 2017 Report to the Judicial Conference ............................... 62 TAB 3 ACTION ITEM: ITEM NO. 12-AP-D (RULES 8, 11, AND 39) A. Reporter’s Memorandum (April 2, 2017) ......................................... 82 B. Preliminary Draft of Proposed Amendments................................... 88 C. Reporter’s Memorandum (March 13, 2016) ................................. 104 TAB 4 ACTION ITEM: ITEM NO. 11-AP-D (RULE 25) A. Reporter’s Memorandum (April 10, 2017) ..................................... 112 B. Preliminary Draft of Proposed Amendments................................ 122 C. Memorandum Regarding Civil Rule 5 (April 2017) ..................... 134 D. Comment Filed by Aderant (January 23, 2017) ............................ 150 E. Comment Filed by Michael Rosman (February 2, 2017) ............. 154 F. Comment Filed by Heather Dixon (February 14, 2017) ............... 160 G. Comment Filed by New York City Bar Association (February 15, 2017) ...................................................................................................164 H. Comment Filed by Sai (February 15, 2017) ................................... 172 TAB 5 ACTION ITEM: ITEM NO. 15-AP-C (RULES 28.1 AND 31) A. Reporter’s Memorandum (March 28, 2017) ...................................214 B. Preliminary Draft of Proposed Amendments..................................218 Advisory Committee on Appellate Rules, Spring 2017 Meeting 2 TAB 6 ACTION ITEM: ITEM NO. 14-AP-D (RULE 29) A. Reporter’s Memorandum (April 9, 2017) ........................................ 224 B. Preliminary Draft of Proposed Amendments.................................. 232 C. Rule 29................................................................................................. 234 D. Reporter’s Memorandum (October 15, 2015) ................................ 240 E. Comment Filed by Alan Morrison (September 28, 2016) ............. 244 F. Comment Filed by Federal Bar Council (February 23, 2017) ...... 252 G. Comment Filed by Heather Dixon (February 14, 2017) ................ 260 TAB 7 ACTION ITEM: ITEM NO. 13-AP-H (RULE 41) A. Reporter’s Memorandum (April 9, 2017) ........................................ 268 B. Preliminary Draft of Proposed Amendments.................................. 276 C. Reporter’s Memorandum (April 9, 2015) ........................................ 284 D. Comment Filed by Jon Newman (February 17, 2017).................... 298 E. Comment Filed by Judge Robert Katzmann (February 14, 2017) .306 F. Comment Filed by New York City Bar Association (February 15, 2017) .......................................................................... 310 G. Comment Filed by the National Association of Criminal Defense Lawyers (February 15, 2017) ...........................................................318 H. Comment Filed by Megan Mauer (October 31, 2016) ...................324 TAB 8 ACTION ITEM: ITEM NO. 15-AP-E (FORM 4) A. Reporter’s Memorandum (March 28, 2017) ...................................330 B. Preliminary Draft of Proposed Amendments..................................334 C. Comment Filed by World Privacy Forum (January 3, 2017) .......336 D. Comments Filed by the Pennsylvania Bar Association (February 10, 2017) ....................................................................................................342 Advisory Committee on Appellate Rules, Spring 2017 Meeting 3 TAB 9 ACTION ITEM: ITEMS 08-AP-A, 11-AP-C, AND 15-AP-D (RULE 3, ET AL.) Reporter’s Memorandum (March 28, 2017) ...............................................352 TAB 10 ACTION ITEM: ITEMS 08-AP-R (RULE 26.1) A. Reporter’s Memorandum (March 28, 2017) ...................................360 B. Reporter’s Memorandum (September 20, 2016) ...........................370 C. Preliminary Draft of Proposed Amendments..................................384 D. Memorandum by Elizabeth Gibson, Reporter to the Advisory Committee on Bankruptcy Rules (February 17, 2017) ...................388 TAB 11 DISCUSSION ITEM: ITEM 16-AP-C (RULES 32.1 AND 35) A. Reporter’s Memorandum (April 9, 2017) ........................................398 B. Suggestion 16-AP-C .......................................................................... 402 TAB 12 DISCUSSION ITEM: ITEM 16-AP-D (RULE 28(J)) A. Reporter’s Memorandum (April 6, 2017) ........................................408 B. Suggestion 16-AP-D ...........................................................................410 TAB 13 DISCUSSION ITEM: ITEM 17-AP-A (RULES 4 AND 27) A. Reporter’s Memorandum (March 21, 2017) ...................................414 B. Suggestion 17-AP-A .......................................................................... 416 TAB 14 DISCUSSION ITEM: ITEM 17-AP-B (RULE 28) A. Reporter’s Memorandum (April 6, 2017) ........................................420 B. Suggestion 17-AP-B ...........................................................................422 TAB 15 DISCUSSION ITEM: EFFICIENCY IN FEDERAL APPELLATE LITIGATION A. Reporter’s Memorandum (April 9, 2017) .......................................432 B. Memorandum by Stephen E. Sachs (April 8, 2017) .......................436 C. Memorandum by American Academy of Appellate Lawyers Task Force of Federal Appellate Rules (March 13, 2017) .............474 Advisory Committee on Appellate Rules, Spring 2017 Meeting 4 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Spring 2017 Meeting 5 Agenda for Spring 2017 Meeting of Advisory Committee on Appellate Rules May 2, 2017 - San Diego, CA 1. Introductions and Table of Agenda Items Opening Business 2. Approval of Minutes of October 2017 Meeting and Report on January 2017 Meeting of Standing Committee Consideration of Comments on Published Proposals 3. Item 12-AP-D (Rules 8, 11, and 39) 4. Item 11-AP-D (Rule 25) 5. Item 15-AP-C (Rules 28.1 and 31) 6. Item 14-AP-D (Rule 29) 7. Item 13-AP-H (Rule 41) 8. Item 15-AP-E (Form 4) Proposals for Publication 9. Items 08-APA, 11-AP-C, and 15-AP-D (Rule 3, et al.) 10. Item 08-AP-R (Rule 26.1) Discussion Items/New Business 11. Item 16-AP-C (Rules 32.1 and 35) 12. Item 16-AP-D (Rule 28(j)) 13. Item 17-AP-A (Rules 4 and 27) 14. Item 17-AP-B (Rule 28) 15. Efficiency in Federal Appellate Litigation Adjournment Advisory Committee on Appellate Rules, Spring 2017 Meeting 6 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Spring 2017 Meeting 7 ADVISORY COMMITTEE ON APPELLATE RULES Chair, Advisory Committee on Appellate Rules Honorable Neil M. Gorsuch United States Court of Appeals Byron White United States Courthouse 1823 Stout Street, 4th Floor Denver, CO 80257-1823 Reporter, Advisory Committee Professor Gregory E. Maggs on Appellate Rules The George Washington University Law School 2000 H Street, N.W. Washington DC 20052 Members, Advisory Committee Honorable Michael A. Chagares on Appellate Rules United States Court of Appeals United States Post Office and Courthouse Two Federal Square, Room 357 Newark, NJ 07102-3513 Honorable Judith L. French Ohio Supreme Court 65 South Front Street Columbus, OH 43215 Neal Katyal, Esq. Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, N.W. Washington, DC 20004 Honorable Brett M. Kavanaugh United States Court of Appeals William B. Bryant United States Courthouse Annex 333 Constitution Avenue, N.W., Room 3004 Washington, DC 20001 Honorable Stephen Joseph Murphy III United States District Court Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 235 Detroit, MI 48226 Kevin C. Newsom, Esq. Bradley Arant Boult Cummings LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203 Effective: October 1, 2016 Advisory Committee on Appellate Rules Page 1 Revised: March 24, 2017 Advisory Committee on Appellate Rules, Spring 2017 Meeting 8 Members, Advisory Committee Professor Stephen E. Sachs on Appellate Rules (cont’d) Duke Law School 210 Science Drive Box 90360 Durham, NC 27708-0360 Honorable Jeffrey B. Wall Acting Solicitor General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W., Room 5143 Washington, DC 20530 Clerk of Court Representative, Elisabeth A. Shumaker Advisory Committee on Appellate Rules Clerk United States Court of Appeals Byron White United States Courthouse 1823 Stout Street, 1st Floor Denver, CO 80257-1823 Liaison Members, Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Latham & Watkins LLP 555 Eleventh Street, N.W. Washington, DC 20004-1304 Honorable Pamela Pepper (Bankruptcy) United States District Court United States Courthouse and Federal Building 517 East Wisconsin Avenue, Room 271 Milwaukee, WI 53202 Secretary, Standing Committee Rebecca A. Womeldorf 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]
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