Category Archives: Federal Rules of Civil Procedure
Distinctions in Federal and NYS Deposition Practice – Part One
The rules and law governing the review and execution of errata sheets and the scope of permissible corrections differs between Federal and New York State practice (and as between our own Departments). These distinctions will be discussed in a short series of blog articles. In this post, I am going to discuss the distinctions applicable to the review of a transcript by a witness. Are You Obligated To Allow The Witness To Review The Transcript? As a preliminary matter, under CPLR 3116 it is mandatory that the transcript be provided to the witness for review and correction. Should the witness […]
Recent Amendments to the Federal Rules of Bankruptcy Procedure, Effective December 1, 2016
Recent bankruptcy rule amendments, effective December 1, 2016, address the continuing impact of the Stern v. Marshall case on bankruptcy proceedings. In Stern v. Marshall, 564 U.S. 462 (2011), the United States Supreme Court held that a bankruptcy court, as a non-Article III court (i.e. courts without full judicial independence) lacked constitutional authority under Article III of the United States Constitution to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim, even though Congress purported to grant such statutory authority under 28 U.S.C. § 157(b)2(C).
Amended Federal Rules Emphasize Proportionality and Cooperation
This is the second post concerning amendments to the Federal Rules of Civil Procedure (“FRCP”), which became effective on December 1, 2015. This post focuses primarily on amendments to FRCP 1 and 26 governing the need for proportionality. The prior post concerned revisions to FRCP 37(e) governing the preservation of electronically stored information (“ESI”), the remedies for spoliation of ESI where a party has failed to take “reasonable steps” to preserve, and remedies arising from “prejudice” as compared to spoliation of ESI arising from “intent to deprive”.
Amended FRCP 37(e) Provides Rules Governing ESI Preservation and Sanctions
Amended Rule 37(e) of the Federal Rules of Civil Procedure (“FRCP”), effective as of December 1, 2015, squarely addresses sanctions for the spoliation of electronically stored information (“ESI”) and overrules Second Circuit jurisprudence in the area. Some commentators have called FRCP 37(e) the most significant rule governing eDiscovery since the Zubulake line of cases. Prior to the adoption of FRCP 37(e), there existed a split among the Circuits as to the grounds for sanctions arising from the spoliation of ESI. In 2002, in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), the U.S. Court of […]
