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Advisory Committee on Appellate Rules ADVISORY COMMITTEE ON APPELLATE RULES Washington, DC October 20, 2014 TABLE OF CONTENTS AGENDA ...................................................................................................................................... 5 TAB 1 Introductions & Opening Business A. Table of Agenda Items (October 2014) ............................................... 19 B. ACTION ITEM: Draft Minutes of April 2014 Meeting of the Appellate Rules Committee .................................................................. 25 C. Draft Minutes of May 2014 Meeting of the Standing Committee ............................................................................................. 51 TAB 2 Other Information Items: Reporter’s Memorandum with Appendix Regarding History of the 1998 Amendments to Rule 32 ................................ 73 Appendix ................................................................................................ 81 TAB 3 Agenda Item No. 08-AP-R: Disclosure Requirements A. Reporter’s Memorandum (October 3, 2014) .................................... 103 B. Additional Materials Reporter’s Memorandum to Subcommittee on Disclosure Requirements Regarding Topics for Investigation (August 19, 2014)................................................................................. 111 Appendix ................................................................................. 129 Memorandum to Cathie Struve from Kevin Newsom & Mary Ann Couch Regarding FRAP Disclosure Project (September 10, 2014) .......................................................................... 145 Memorandum to Subcommittee on Disclosure Requirements from Neal Kumar Katyal & Sean Marotta Regarding Appellate Rule 26.1 Research Project (September 15, 2014) .......... 151 28 U.S.C. § 455 .................................................................................... 155 28 U.S.C. § 47 ...................................................................................... 159 Canon 3, Code of Conduct for United States Judges ....................... 161 October 20, 2014 Page 3 of 316 TAB 4 Agenda Item Nos. 09-AP-D & 11-AP-F: Response to Mohawk Industries A. Reporter’s Memorandum (October 3, 2014) .................................... 169 B. Agenda Item No. 11-AP-F (Amy M. Smith) ..................................... 183 TAB 5 Agenda Item No. 13-AP-H: Ryan v. Schad & Bell v. Thompson A. Reporter’s Memorandum (October 3, 2014) .................................... 189 B. Henry v. Ryan, No. 09-99007, 2014 WL 4397948 (9th Cir. Sept. 4, 2014) ........................................................................ 209 TAB 6 Agenda Item Nos. 08-AP-A, 11-AP-C, & 11-AP-D: Changes to the Federal Rules of Appellate Procedure in Light of CM/ECF A. Reporter’s Memorandum (October 3, 2014) .................................... 225 Appendix ................................................................................. 245 B. “E-Rules Amendments” by Professor Edward H. Cooper, Reporter to the Advisory Committee on Civil Rules ....................... 291 TAB 7 New Business: Reporter’s Memorandum Regarding Communications with Judges of the Courts of Appeals (October 3, 2014) .............................. 315 October 20, 2014 Page 4 of 316 Agenda for Fall 2014 Meeting of Advisory Committee on Appellate Rules October 20, 2014 Washington, DC I. Introductions II. Approval of Minutes of April 2014 Meeting III. Report on May 2014 Meeting of Standing Committee IV. Other Information Items V. Discussion Items A. Item No. 08-AP-R (disclosure requirements) B. Item Nos. 09-AP-D & 11-AP-F (response to Mohawk Industries) C. Item No. 13-AP-H (Ryan v. Schad and Bell v. Thompson / FRAP 41) D. Item Nos. 08-AP-A, 11-AP-C, and 11-AP-D (changes to FRAP in light of CM/ECF) VI. New Business VII. Adjournment October 20, 2014 Page 5 of 316 THIS PAGE INTENTIONALLY BLANK October 20, 2014 Page 6 of 316 ADVISORY COMMITTEE ON APPELLATE RULES Chair, Advisory Committee on Appellate Rules Honorable Steven M. Colloton United States Court of Appeals U.S. Courthouse Annex, Suite 461 110 East Court Avenue Des Moines, IA 50309-2044 Reporter, Advisory Committee Professor Catherine T. Struve on Appellate Rules University of Pennsylvania Law School 3501 Sansom Street Philadelphia, PA 19104 Members, Advisory Committee Professor Amy Coney Barrett on Appellate Rules University of Notre Dame Law School 3165 Eck Hall of Law Notre Dame, IN 46556 Honorable Michael A. Chagares United States Court of Appeals United States Post Office and Courthouse Two Federal Square, Room 357 Newark, NJ 07102-3513 Honorable Allison H. Eid Colorado Supreme Court 2 East 14th Avenue Denver, CO 80203 Honorable Peter T. Fay United States Court of Appeals James Lawrence King Federal Justice Building 99 Northeast Fourth Street, Room 1255 Miami, FL 33132 Gregory G. Katsas Jones Day 51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113 Neal Katyal, Esq. Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, N.W. Washington, DC 20004 October 20, 2014 Page 7 of 316 Members, Advisory Committee Kevin C. Newsom, Esq. on Appellate Rules (cont’d.) Bradley Arant Boult Cummings LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203 Honorable Richard G. Taranto United States Court of Appeals Howard T. Markey National Courts Building 717 Madison Place, N.W., Suite 802 Washington, DC 20439 Honorable Donald Verrilli Solicitor General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Clerk of Court Representative, Michael Ellis Gans Advisory Committee on Appellate Rules United States Court of Appeals Thomas F. Eagleton United States Courthouse 111 South Tenth Street, Room 24.329 St. Louis, MO 6312-1116 Liaison Member, Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Latham & Watkins LLP 555 Eleventh Street, N.W. Washington, DC 20004-1304 Honorable Adalberto Jordan (Bankruptcy) Eleventh Circuit Court of Appeals Wilkie D. Ferguson, Jr. U.S. Courthouse 400 North Miami Avenue, Room 10-4 Miami, FL 33128 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] October 20, 2014 Page 8 of 316 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] October 20, 2014 Page 9 of 316 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 Neil M. Gorsuch (Standing) on Civil Rules Liaison for the Advisory Committee Judge Amy J. St. Eve (Standing) on Criminal Rules Liaison for the Advisory Committee (Bankruptcy) on Evidence Rules Liaison for the Advisory Committee Judge Paul S. Diamond (Civil) on Evidence Rules Liaison for the Advisory Committee (Criminal) on Evidence Rules Liaison for the Advisory Committee Judge Richard C. Wesley (Standing) on Evidence Rules October 20, 2014 Page 10 of 316 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] Julie Wilson Attorney Advisor Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-3678 Fax 202-502-1766 [email protected] Scott Myers Attorney Advisor (Bankruptcy) Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-250 Washington, DC 20544 Phone 202-502-1900 Fax 202-502-1988 [email protected] Bridget M. Healy Attorney Advisor (Bankruptcy) Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 4-273 Washington, DC 20544 Phone 202-502-1900 Fax 202-502-1988 [email protected] Toni A. Loftin Administrative Specialist Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1682 Fax 202-502-1755 [email protected] October 20, 2014 Page 11 of 316 Frances F. Skillman Paralegal Specialist Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-3945 Fax 202-502-1755 [email protected] October 20, 2014 Page 12 of 316 FEDERAL JUDICIAL CENTER Tim Reagan Marie Leary (Rules of Practice & Procedure) (Appellate Rules Committee) Senior Research Associate Research Associate Federal Judicial Center Research Division Thurgood Marshall Federal Thurgood Marshall Federal Judiciary Building Judiciary Building One Columbus Circle, N.E. One Columbus Circle, N.E., Room 6-436 Washington, DC 20002-8003 Washington, DC 20002 Phone 202-502-4069 Phone 202-502-4097 Fax 202-502-4199 Fax 202-502-4199 [email protected] Molly T. Johnson Emery G. Lee (Bankruptcy Rules Committee) (Civil Rules Committee) Senior Research Associate Senior Research Associate Research
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