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ADVISORY COMMITTEE ON CIVIL RULES Ann Arbor, Michigan March 22-23, 2012 THIS PAGE INTENTIONALLY BLANK March 22-23, 2012 Page 2 of 644 TABLE OF CONTENTS TAB 1. Agenda ................................................................................................................... 7 A. Draft Minutes of January 5-6, 2012 Standing Committee Meeting ........... 19 B. Report of the Proceedings of the Judicial Conference (Sept. 13, 2011) ..... 63 TAB 2. Draft Minutes of November 2011 Civil Rules Meeting ..................................... 103 TAB 3. Legislative Report ................................................................................................. 151 TAB 4. Rule 45 A. Memo Regarding Rule 45 Issues ................................................................... 155 B. Summary of Comments on Rule 45 Amendments ....................................... 191 C. Notes from Feb. 16, 2012 Discovery Subcommittee Conference Call ........ 219 D. Memo Regarding Discussion Issues for March Meeting Agenda Materials ............................................................................................ 229 TAB 5. Discovery Subcommittee Report A. Memo Regarding Sanctions/Preservation Issues ......................................... 249 B. Notes from Jan. 26, 2012 Subcommittee Conference Call .......................... 281 C. Notes from Nov. 23, 2011 Subcommittee Conference Call.......................... 289 D. An E-Discovery Model Order ........................................................................ 297 TAB 6. Panel Discussion: Rules Past and Future........................................................... 307 TAB 7. Pleading Standards ............................................................................................... 311 TAB 8. Of Waves and Water: A Response to Comments on the FJC Study Motions to Dismiss for Failure to State a Claim after Iqbal (DRAFT) ........ 315 TAB 9. Duke Subcommittee Report A. Memo Regarding Duke Subcommittee ......................................................... 371 B. Duke Conference Subcommittee Rules Sketches ......................................... 375 C. Notes from Jan. 31, 2012 Subcommittee Conference Call .......................... 409 D. FJC Report: Rule 26(f) Practice .................................................................... 421 March 22-23, 2012 Page 3 of 644 Table of Contents – Page 2 TAB 10. Inter-Committee Forms Subcommittee Report A. Rule 84 Forms Report .................................................................................... 425 B. AO Forms ........................................................................................................ 433 C. Rule 84 Forms Case Citation Compendium ................................................. 443 TAB 11. Rule 23 Subcommittee Report A. Memo Regarding Rule 23 Issues ................................................................... 449 B. Notes from Jan. 27, 2012 Subcommittee Conference Call .......................... 475 C. Notes from Jan. 5, 2012 Standing Committee Rule 23 Panel...................... 483 D. Memo Regarding Ideas from ALI Aggregate Litigation Principles .......... 497 E. Rule 23 Cases ................................................................................................... 529 TAB 12. Motions to Set Aside Nonfinal Default Judgments A. Rule 55(c): Style Clarification....................................................................... 611 B. Memo from Judge Harris regarding Motions to Set Aside Nonfinal Default Judgments under Rules 55(c), 54(b), and 60(b) .............................. 615 March 22-23, 2012 Page 4 of 644 TAB 1 March 22-23, 2012 Page 5 of 644 THIS PAGE INTENTIONALLY BLANK March 22-23, 2012 Page 6 of 644 Agenda March 22-23, 2012 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: Rule 45: Proposed Recommendation To Adopt 5. Discovery Subcommittee Report: Preservation and Spoliation 6. Rules Past and Future Panel 7. Pleading 8. FJC Report: Motions to Dismiss Sequel 9. Duke Subcommittee a. Report and agenda b. Conference Call Notes c. FJC Report: Rule 26(f) practice 10. Inter-Committee Forms Subcommittee Report 11. Rule 23 Subcommittee Report 12. ACTION ITEM: Rule 55(c) 13. Next Meeting: November 1-2, 2012 March 22-23, 2012 Page 7 of 644 THIS PAGE INTENTIONALLY BLANK March 22-23, 2012 Page 8 of 644 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 Elizabeth Cabraser, Esq. Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street - Suite 3000 San Francisco, CA 94111-3339 Honorable Steven M. Colloton United States Court of Appeals U.S. Courthouse Annex, Suite 461 110 East Court Avenue Des Moines, IA 50309-2044 Honorable Paul S. Diamond United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 6613 Philadelphia, PA 19106 Honorable Paul W. Grimm United States District Court Edward A. Garmatz Federal Bldg. U.S. Courthouse 101 West Lombard Street, Room 820 Baltimore, MD 21201 Effective: October 1, 2011 Advisory Committee on Civil Rules Page 1 Revised: January 30, 2012 March 22-23, 2012 Page 9 of 644 Members, Advisory Committee Ted Hirt, Esq. on Civil Rules (cont’d.) Office of Immigration Litigation 450 5th Street, NW – Room 5312 Washington, DC 20530 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 Michael W. Mosman United States District Court Mark O. Hatfield United States Courthouse 1000 Southwest Third Avenue, Room 1615 Portland, OR 97204-2802 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 Honorable Gene E. K. Pratter United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 7614 Philadelphia, PA 19106-1797 Honorable Randall T. Shepard Indiana Supreme Court 200 West Washington Street State House, Room 304 Indianapolis, IN 46204 Effective: October 1, 2011 Advisory Committee on Civil Rules Page 2 Revised: January 30, 2012 March 22-23, 2012 Page 10 of 644 Members, Advisory Committee Anton R. Valukas, Esq. on Civil Rules (cont’d.) Jenner & Block LLP One IBM Plaza Chicago, IL 60611 Honorable Tony West Assistant Attorney General Civil Division (ex officio) United States Department of Justice 950 Pennsylvania Ave., NW – Room 3141 Washington, DC 20530 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 Peter G. McCabe Secretary Committee on Rules of Practice & Procedure Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-180 Washington, DC 20544 Phone 202-502-1800 Fax 202-502-1766 [email protected] Effective: October 1, 2011 Advisory Committee on Civil Rules Page 3 Revised: January 30, 2012 March 22-23, 2012 Page 11 of 644 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] Rules Committee Officer Jonathan C. Rose 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] 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] Effective: October 1, 2011 Advisory Committee on Civil Rules Page 4 Revised: January 30, 2012 March 22-23, 2012 Page 12 of 644 LIAISON MEMBERS Liaison for the Advisory Committee Dean C. Colson (Standing) on Appellate Rules Liaison for the Advisory Committee Judge James A. Teilborg (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
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