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Advisory Committee on Civil Rules ADVISORY COMMITTEE ON CIVIL RULES Washington, DC October 29, 2019 AGENDA Meeting of the Advisory Committee on Civil Rules October 29, 2019 Washington, DC 1. Opening Business A. Report on the June Meeting of the Committee on Rules of Practice and Procedure • Draft Minutes of the June 25, 2019 Meeting of the Committee on Rules of Practice and Procedure .....................................................19 B. Report on the September 2019 Session of the Judicial Conference of the United States • September 2019 Report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States ...........47 C. Status of Proposed Amendments to the Federal Rules • Chart Tracking Proposed Rules Amendments .....................................75 2. ACTION: Review and Approval of Minutes • Draft Minutes of the April 2-3, 2019 Meeting of the Advisory Committee on Civil Rules ................................................................................87 3. Information: Legislative Update • Pending Legislation that Would Directly or Effectively Amend the Federal Rules (116th Congress) .....................................................................127 4. ACTION: Social Security Disability Review Subcommittee • Subcommittee Report.....................................................................................133 o Draft Rule 71.2...................................................................................143 • Supporting Materials o Notes of Conference Call (September 11, 2019) ...............................149 o Notes of Conference Call (July 18, 2019) .........................................159 Advisory Committee on Civil Rules | October 29, 2019 Page 3 of 395 o Notes of Meeting with Social Security Review Parties (June 20, 2019) ..................................................................................163 o Notes of Conference Call (May 14, 2019) .........................................181 5. Information: Multidistrict Litigation Subcommittee • Subcommittee Report.....................................................................................189 • Supporting Materials o Notes of Conference Call (September 12, 2019) ...............................203 o Notes of Conference Call (July 1, 2019) ...........................................209 o Notes of Conference Call (May 13, 2019) .........................................215 6. Information: Appeal Finality After Consolidation Joint Subcommittee ................225 7. Information: E-filing Deadline Joint Subcommittee .................................................231 • Suggestion 19-CV-U ............................................................................................233 8. Information: Rule 4(c)(3): Service by the U.S. Marshals Service in In Forma Pauperis Cases ......................................................................239 • Suggestion 19-CV-A ............................................................................................243 9. Information: Rules 4 and 5...........................................................................................247 • Suggestion 19-CV-N ............................................................................................249 10. Information: Rule 12(a)(2) ...........................................................................................253 • Suggestion 19-CV-O ............................................................................................257 11. ACTION: Calculating Filing Deadlines and In Forma Pauperis Standards ............263 • Suggestion 19-CV-Q ............................................................................................271 • Suggestion 19-CV-R ............................................................................................279 • AO 239 – Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)...........................................................................................281 • AO 240 – Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form) ..........................................................................................287 Advisory Committee on Civil Rules | October 29, 2019 Page 4 of 395 12. ACTION: Rule 68 Offers of Judgment ........................................................................291 • Suggestion 19-CV-S ............................................................................................295 • Prior Consideration of Rule 68 ............................................................................299 13. ACTION: Rule 26(b)(4)(B) ............................................................................................315 • Suggestion 19-CV-T ............................................................................................295 14. ACTION: Rule 26: ESI Production, Cost-Shifting .....................................................333 • Suggestion 19-CV-V ............................................................................................337 15. ACTION: Rule 4(d): Constructive Waiver of Service ................................................341 • Suggestion 19-CV-W ...........................................................................................345 16. Pilot Projects Update (Oral Report) • Federal Judicial Center, Report on the Mandatory Initial Discovery Pilot: Results of Closed-Case Attorney Surveys Fall 2017-Spring 2019 (September 2019) .................................................................................................353 Advisory Committee on Civil Rules | October 29, 2019 Page 5 of 395 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Civil Rules | October 29, 2019 Page 6 of 395 ADVISORY COMMITTEE ON CIVIL RULES Chair Reporter Honorable John D. Bates Professor Edward H. Cooper United States District Court University of Michigan Law School E. Barrett Prettyman U.S. Courthouse 312 Hutchins Hall 333 Constitution Avenue, N.W. Ann Arbor, MI 48109-1215 Washington, DC 20001 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 Robert M. Dow, Jr. United States District Court United States District Court John Joseph Moakley U.S. Courthouse Everett McKinley Dirksen U.S. Courthouse One Courthouse Way, Room 6400 219 South Dearborn Street, Room 1978 Boston, MA 02210-3002 Chicago, IL 60604 Honorable Joan N. Ericksen Honorable Joseph H. Hunt* United States District Court Assistant Attorney General (ex officio) 300 South Fourth Street, Room 12W United States Department of Justice Minneapolis, MN 55415 950 Pennsylvania Ave., N.W., Suite 3601 Washington, DC 20530 *Alternate Representative: Joshua E. Gardner, Esq. United States Department of Justice 1100 L Street, N.W., Suite 12200 Washington, DC 20005 Honorable Kent A. Jordan Honorable Thomas R. Lee United States Court of Appeals Associate Chief Justice J. Caleb Boggs Federal Building Utah Supreme Court 844 North King Street, Room 5100 450 South State, PO Box 140210 Wilmington, DE 19801-3519 Salt Lake City, UT 84114-0210 Effective: October 1, 2019 to September 30, 2020 Page 1 Revised: October 1, 2019 Advisory Committee on Civil Rules | October 29, 2019 7 of 395 ADVISORY COMMITTEE ON CIVIL RULES Members (continued) Honorable Sara Lioi Honorable Brian Morris United States District Court United States District Court John F. Seiberling Federal Building Missouri River Courthouse and U.S. Courthouse 125 Central Avenue West, Suite 301 Two South Main Street, Room 526 Great Falls, MT 59404 Akron, OH 44308 Honorable Robin L. Rosenberg Virginia A. Seitz, Esq. United States District Court Sidley Austin LLP Paul G. Rogers Federal Building 1501 K Street, N.W. 701 Clematis Street, Room 453 Washington DC 20005 West Palm Beach, FL 33401 Joseph M. Sellers, Esq. Professor A. Benjamin Spencer Cohen Milstein Sellers & Toll PLLC University of Virginia Law School 1100 New York Avenue N.W., Fifth Floor 580 Massie Road, Room WB173E Washington, DC 20005 Charlottesville, VA 22903 Ariana J. Tadler, Esq. Helen E. Witt, Esq. Tadler Law LLP Kirkland & Ellis LLP One Pennsylvania Plaza 300 North LaSalle New York, NY 10119 Chicago, IL 60654 Liaisons Honorable A. Benjamin Goldgar Peter D. Keisler, Esq. (Bankruptcy) (Standing) United States Bankruptcy Court Sidley Austin, LLP Everett McKinley Dirksen U.S. Courthouse 1501 K Street, N.W. 219 South Dearborn Street, Room 638 Washington DC 20005 Chicago IL 60604 Clerk of Court Representative Laura A. Briggs, Esq. Clerk United States District Court 105 Birch Bayh Federal Building 46 East Ohio Street Indianapolis, IN 46204 Effective: October 1, 2019 to September 30, 2020 Page 2 Revised: October 1, 2019 Advisory Committee on Civil Rules | October 29, 2019 8 of 395 ADVISORY COMMITTEE ON CIVIL RULES Secretary, Standing Committee and Rules Committee Chief Counsel Rebecca A. Womeldorf Administrative Office of the U.S. Courts One Columbus Circle, N.E., Room 7-300 Washington, DC 20544 Effective: October 1, 2019 to September 30, 2020 Page 3 Revised: October 1, 2019 Advisory Committee on Civil Rules | October 29, 2019 9 of 395 Advisory Committee on Civil Rules Members Position District/Circuit Start Date End Date John D. Bates Chair D District of Columbia Chair: 2015 2020 Jennifer C. Boal M Massachusetts 2018 2021 Robert M. Dow, Jr. D Illinois (Northern) 2013 2020 Joan N. Ericksen D Minnesota 2015 2021 Joseph H. Hunt* DOJ Washington, DC ---- Open Kent A. Jordan C Third Circuit
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