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The Federal Rules of Civil Procedure: Surveying Recent Amendments and What’s to Come

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Produced on September 24, 2019

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Course Information

Time 67 minutes
Difficulty Intermediate

Course Description

Significant amendments to the Federal Rules of Civil Procedure took effect in 2015. While they were dismissed by some, Chief Justice Roberts notably observed 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.”  

In this program, attorneys Jennifer H. Rearden, Gabriel Herrmann, and Justine Goeke of Gibson, Dunn & Crutcher LLP summarize the key components and effects of the 2015 rule amendments, and survey the case law that has developed since their enactment to assess whether Chief Justice Roberts’ observation has been confirmed in practice by the lower courts. They also briefly summarize the further rule amendments that have been enacted since 2015, as well as a pending rule change for Rule 30 that may be approved next year.


Learning Objectives:

  1. Summarize the post-2015 amendments and consider their practical implications
  2. Review the courts’ efforts to curb the use of boilerplate objections to Rule 34 requests for documents
  3. Identify trends in the implementation of Rule 37’s provisions governing preservation of electronically stored information
  4. Discuss the real-world effect of the 2015 proportionality amendments
  5. Examine the pending rule change for Rule 30

Credit Information

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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.



Justine Goeke

Gibson Dunn

Justine Goeke is an associate in the New York office of Gibson, Dunn & Crutcher.  She is a member of the Firm’s Litigation Department, as well as the Appellate and Constitutional Law Practice Group, the Administrative Law and Regulatory Practice Group, the Securities Litigation Practice Group, and the White Collar Defense and Investigations Practice Group. 

Ms. Goeke served as a law clerk to the Honorable Ann M. Donnelly in the United States District Court for the Eastern District of New York and as a law clerk to the Honorable D. Brock Hornby in the United States District Court for the District of Maine.  Prior to clerking, Ms. Goeke practiced with the firm Quinn Emanuel Urquhart & Sullivan.

Ms. Goeke received her Juris Doctor from Harvard Law School in 2013, where she was both a student attorney and the Secretary-Treasurer for the Harvard Legal Aid Bureau.  Ms. Goeke received her Bachelor of Arts, magna cum laude, from St. Olaf College.

Ms. Goeke 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.



Reviews

JB
Justin B.

I enjoyed having multiple presenters. It helped in my opinion.

LE
Lisa E.

Liked the collaboration and join presentation.

ML
Michael J. L.

Very useful course.

DH
d andrew h.

lotsa fun

JT
Jeffrey T.

Very informative

LK
Lisa K.

Excellent presentation.

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