December 2015 Amendments to the Federal Rules of Civil Procedure

(1910 Ratings)

Produced on: March 10, 2016

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 93 minutes
Difficulty Advanced

The most recent round of amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Heralded by some as indicative of a sea of change in federal practice, and dismissed by others as much ado about nothing, the import of the 2015 amendments is just beginning to manifest itself in real-world case applications. Chief Justice Roberts noted in his 2015 year-end report on the federal court system that “[t]he amendments may not look like a big deal at first glance, but they are.”  Whether his assessment is confirmed in practice, however, remains to be seen.  

 

In this program, attorneys Jennifer H. Rearden and Gabriel Herrmann of Gibson, Dunn & Crutcher LLP summarize the key components of the 2015 rule amendments and assess the earliest indications regarding their impact on the conduct of litigation in the federal courts.  

 

Learning Objectives: 

I.     Understand the import of Rule 1’s “cooperation” amendment

II.    Evaluate the scope of 2015’s proportionality amendments and the standards governing proportionality under the amended rules

III.   Summarize the recent case-management amendments and consider their practical implications

IV.   Review amended Rule 37’s new provisions governing preservation of electronically stored information

V.    Identify any early trends in the implementation of the 2015 amendments

Faculty

Jennifer H. Rearden

Gibson, Dunn & Crutcher LLP

Jennifer H. Rearden, a partner resident in Gibson, Dunn & Crutcher's New York office, is a member of Gibson Dunn's Litigation and Crisis Management Practice Groups, and is Co-Chair of Gibson Dunn's Electronic Discovery and Information Law Practice Group. She also serves on Gibson Dunn's Partnership Evaluation, Hiring and Compensation Committees.

Ms. Rearden represents clients in complex business litigation, including securities fraud, hostile M&A, and disputes with states and municipalities, as well as internal investigations. She has argued before multiple federal and state courts and administrative bodies, and has tried cases to judges and juries. Ms. Rearden's practice also frequently includes assisting clients in responding to high-profile events and evaluating legal risk, and counseling clients regarding crisis management planning and effective crisis response. Among the high-profile matters in which Ms. Rearden has been involved was the Cablevision and Madison Square Garden trial-level and appellate litigation challenging and ultimately defeating New York City's sweeping proposal to build a new stadium for the New York Jets on Manhattan's West Side, and the successful defense of Cablevision and the Garden in a $100 million antitrust suit brought by the Jets over their failed stadium bid. She is also part of the Gibson Dunn team that represented Chevron Corporation in its successful effort to block enforcement of a 2003 judgment for $9.2 billion in an environmental case in Ecuador.

Ms. Rearden received her Juris Doctor from New York University School of Law, where she was a member of the Journal of International Law and Politics. She graduated magna cum laude from Yale University with a Bachelor of Arts degree in History. Ms. Rearden serves on the boards of the Yale Club of New York City, Copland House and the NYU Law Alumni Association. She is a member of The Sedona Conference® Working Group 1 on Electronic Document Retention and Production, The Sedona Conference® Working Group 6 on International Electronic Information Management, Discovery and Disclosure, and the New York State Bar Association Committee on Electronic Discovery.

Ms. Rearden is the author of "Subprime-Related Securities Class Actions and Derivative Suits," a chapter in Practicing Law Institute's treatise, Securities Litigation:  A Practitioner's Guide, and she frequently publishes and speaks on securities litigation and electronic discovery, as well as other subjects. Ms. Rearden is a member of the bars of the States of New York, Connecticut, and Georgia and of the United States District Courts for the Southern and Eastern Districts of New York and the Northern District of Georgia. She is also a member of the Association of the Bar of the City of New York.

 

Other significant matters include: 

  • National Association of Securities Dealers (NASD) (now the Financial Industry Regulatory Authority):  Assisted client in defeating putative class actions relating to the consolidation of NASD's member regulatory functions with those of NYSE Regulation, Inc.
  • Home Depot:  Representation of Home Depot in a series of administrative, trial-level and appellate matters in states across the country where Home Depot was denied refunds of sales tax payments on private label credit card transactions in which the customers ultimately defaulted.  These matters are ongoing.
  • Verizon:  Successful motion to dismiss more than a dozen causes of action against Verizon, sounding primarily in fraud, misrepresentation, breach of contract and quasi-contract, in a major real estate dispute.
  • Barclays:  Representation of Lehman Brothers, and subsequently, Barclays, in connection with the Chapter 11 proceedings of Asarco, LLC, including in a trial relating to Barclays's fees.
  • Philip Morris USA:  Successful challenge, on federal preemption grounds, of a New York City regulation requiring tobacco retailers to post graphic antismoking signs at the point of sale.
  • Hudson River Park Trust:  Successful motion to dismiss Chelsea Piers, L.P.'s lawsuit against the Hudson River Park Trust, a public benefit corporation, which sought to shift the ultimate burden of commercial pier repairs to New York State (affirmed on appeal).
  • New York Skyline, Inc.:  Successful appeal for New York Skyline, Inc., a vendor of a virtual tour of New York City, obtaining a unanimous reversal from New York's Appellate Division, First Department of a ruling of the New York State Supreme Court that threatened to put Skyline out of business.  Gibson Dunn convinced the First Department to overturn the lower Court's ruling that general vendor licenses (which are most difficult and time-consuming to obtain) were required for sidewalk ticket sales.
  • Edison Properties:  Successful litigation against the New York Department of Environmental Conservation in respect of its denial of Edison's application to participate in the Brownfield Cleanup Program (which provides for the clean-up and redevelopment of underutilized contaminated properties, including liability relief and tax credits).
  • Maxwell Shoe Company, Inc.:  Representation of Maxwell Shoe in connection with its defense of an unsolicited merger proposal from Jones Apparel Group.
  • Atlantic Coast Airlines Holdings, Inc.:  Representation of Atlantic Coast in its successful effort to fend off a hostile takeover attempt by Mesa Air Group.
  • ArvinMeritor:  Representation of ArvinMeritor in its attempted takeover of Dara Corporation.

Recent Publications

  • Author, "Spoliation Standards Under The New Rule 37(e)," Law360, October 28, 2015.
  • Author, "Stockholder Ratification of Compensation for Non-employee Directors," Delaware Business Court Insider, May 20, 2015.
  • Author, "How Litigants Should Approach Categorical Privilege Logs," New York Commercial Litigation Insider, September 22, 2014.
  • Author, "Nonparty Depositions: From 'Potted Plant' Rule to Venus Fly Traps," New York Commercial Litigation Insider, September 8, 2014.
  • Author, "2014 Mid-Year eDiscovery Update:  Is This the 'Year of Technology' in eDiscovery?" Bloomberg BNA's Digital Discovery & e-Evidence, July 2014.
  • Author, "Litigation Legal Holds and 'Bring Your Own Device'," Bloomberg BNA's Digital Discovery and e-Evidence on April 10, 2014.
  • Author, "Chancery Continues Fight to Remain Leader in Business Dispute Resolution," Delaware Business Court Insider, February 19, 2014.
  • Author, "Chancery Court in Brookstone Underscores Privacy of Comity and Efficiency," Delaware Business Court Insider, December 27, 2012.
  • Author, "Growing Trend Favors Disclosure of Witnesses' Identities," ABA Securities Litigation Newsletter, Fall 2012.
  • Author, "Subprime-Related Securities Class Actions and Derivative Suits," Securities Litigation:  A Practitioner's Guide (2012).
  • Author, "Non-Party . . . Party? When It Comes to Deleted ESI, Is There a Difference Anymore?" Bloomberg BNA, April 2012.
  • Author, "How (Not) to Lose Data and Alienate Judges," Law Technology News, April 2011.
  • Author, "Scheindlin's 'Day Laborer' Decision:  Much Ado About Metadata," Law Technology News, February 2011.
  • Author, "Oh No, Ephemeral Data!," New York Law Journal, March 2010.
  • Author, "If The Sedona Conference Builds It, Will They Cooperate?  Year in Review," New York Law Journal, 2009.
  • Author, "Judge Issues a 'Wake-Up Call' to New York Lawyers:  When It Comes to Search Terms, Play Nice and Plan Ahead," Bloomberg:  New York Law, 2009.
  • Author, "Trends in Subprime-Related Securities Fraud Actions," Law360, 2008.

Recent Speaking Engagements

  • Speaker, "Developments (and Sometimes Disasters) in High-Tech E-Discovery:  Risks, Consequences and Better (or Worse) Practices," Legal Malpractice & Risk Management Conference (March 6, 2014).
  • Speaker, "The Global Embrace: Security & Strategy in Cross-Border eDiscovery," Thomson Reuters Conference Invitation - 17th Annual eDiscovery Forum (December 12, 2013).
  • Moderator, "Tackle the Review Process: Learn from Industry Leaders How It's Done," New York Law Journal webinar (December 9, 2013).
  • Speaker, "Roadmap to Defensible Deletion And Efficient Retention Of Company Data," Association of Corporate Counsel America, (November 5, 2013).
  • Moderator, "New Normal:  Big Data and the Future of Litigation," New York Law Journal webinar (April 15, 2013). 

Gabriel Herrmann

Gibson, Dunn & Crutcher LLP

Gabriel Herrmann is an associate in the New York office of Gibson, Dunn & Crutcher and a member of the Firm’s Litigation Practice Group. His practice focuses on complex business litigation and arbitration in areas such as antitrust, insurance and reinsurance, breach of contract, business torts, employment, intellectual property, hostile M&A, and ERISA. He also has significant experience representing clients in matters relating to the operations of New York State and City governmental entities, including both administrative challenges to agency determinations and constitutional challenges to government action and legislation.

Mr. Herrmann earned his Juris Doctor, cum laude, from the Cornell Law School in 2003, where he served as an Article Editor of the Cornell Law Review and published a Note, Discovering Policy Under the Federal Arbitration Act, 88 Cornell L. Rev. 779 (2003). He received a Bachelor of Arts degree from Clark University in 1998. 

Mr. Herrmann is admitted to practice in the State of New York and before the United States District Courts for the Southern and Eastern Districts of New York. He is a member of the Association of the Bar of the City of New York, the American Bar Association, and the ABA Section of Antitrust Law.

Reviews

SH
Stephen H.

very well presented

RM
Roya M.

Super informative and very well presented. Thank you.

IL
IGNACIO L.

This is one of the few course which, to my mind, actually provides CONTINUING education value.

WD
William D.

More colorful commentary. Dry subject so this is difficult.

WW
William W.

Good overview of the rule change; particularly helpful on what was considered and not changed

RH
Ronald H.

Good program

JR
James R.

Well done and easy to understand

JS
John S.

Excellent program

MD
Malcolm D.

Don't do much federal practice but this program helped direct me regarding some substantive changes.

JR
Joseph R.

very comprehensive

LO
Lisa O.

Good presentation

RM
randal m.

Very nicely done. Thank you.

CB
carol b.

I put off watching this program because I thought it would be boring, but the presenters got me involved. Excellent.

GE
George S E.

Very useful presentation

CD
Charles D.

Very substantive and meaty. Covered a lot of intensive information thoroughly yet concisely.

BO
Brian O.

They both did an excellent job.

KL
Kirk L.

ggreat

RG
Robert G.

I enjoyed having two presenters clarifying points as they listened to the other's presentation.

DS
David S.

Well presented

BM
Brendan M.

Very good presentation of the Federal Rules.

JS
Joshua S.

good overview of changes.

TR
Thomas C. R.

Best researched program I've ever seen on lawline.

MR
Marcia R.

Outstanding presentation by knowledgeable attorneys.

TT
thomas t.

well done

SD
Stephen D.

It was a well organized and informative program considering it is a pretty dry topic.

JD
Joseph D.

Excellent job of combining text of changes with Official Comments and case history to show practical effects of changes and remaining issues in implementing proportionality. I also learned about a couple of changes I had been unaware of

SG
Scott G.

Thanks

RD
Rebekah D.

Thank you

WS
William S.

Actually was a useful course.

SB
Shirlee B.

Good review

CA
Clifford A.

Excellent!

JD
James D.

Good job pulling together a lot of material.

SE
Shaun E.

very good

EH
Edward H.

So far this was one of the most practical and useful CLE courses I have listened to.

TN
Thuy-Linh N.

Excellent CLE

BY
B.Casey Y.

Good and thorough presentation of new FRCP Rules and practical applications.

MG
Matthias G.

Good job - a corporate slant, but very informational.

GB
Gregory B.

Exactly what I want from CLE.

TL
Travis L.

Excellent presenters and substance!

JK
John K.

Very well done.

MF
Mark F.

Excellent

GS
Gail S.

Excellent!

JW
Janine W.

Very good written materials. Good presentation.

LH
Lee H.

Excellent discussion of Rule 26 and Rule 37, but at the same time, pointing out the unknowns regarding interpretation and enforcement by the District Courts!!!

MW
Michael W.

Great summary of the revisions to the FRCP

MW
Misha W.

Well done, very knowledgeable instruction about the evolution of the amended rules discussed and the themes regarding the changes that have gone into effect.

JA
Justin A.

Great seminar.

DB
Donald B.

In many instances the speaker read the material to the audience.

DM
David M.

Well done.

RP
Ralph P.

The speakers spoke clearly, and the quality of the recording was excellent.

AC
Alison C.

Well presented course.

DO
Daniel O.

Very useful course; written materials helpful.

JF
Janine F.

very helpful thanks

KG
Kenneth G.

Very informative

JK
James K.

Very helpful

SP
Sharon P.

Excellent Presenters

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