Federal Rules of Civil Procedure

News & Analysis as of

Use of Rule 45 Subpoenas in TTAB Proceedings

The US Court of Appeals for the 10th Circuit clarified the proper discovery procedures for a Rule 45 subpoena to compel a nonparty to produce documents in a trademark dispute before the US Patent and Trademark Office (PTO)...more

Arizona Sheriff’s Criminal Contempt Charge Reinforces Importance of Compliance with Civil Orders

President Andrew Jackson is reported (likely inaccurately) to have flaunted a Supreme Court decision by retorting, “John Marshall has made his decision; now let him enforce it!” Any litigant who has been on the receiving end...more

In Top “Form” – The NY Commercial Division’s Continuous Efforts to Increase Efficiency and Reduce Litigation Costs

As outlined in previous posts, the New York Commercial Division seeks to be a forward-thinking forum that adopts rule changes aimed at increasing efficiency and decreasing litigant costs. In August, a revised Model...more

Hartig Drug Co. v. Senju Pharmaceutical Co. (3rd Cir. 2016)

Perhaps one of the most influential first year law school classes for the task of learning how to "think like a lawyer" is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies...more

New Resources Available for Interpreting the FRCP

The first couple of months after the Federal Rules of Civil Procedure (FRCP) amendments were enacted in December 2015 changed the ediscovery atmosphere. During that time, it was unknown to practitioners whether the changes to...more

Murata v. Daifuku: District Court Denies Preliminary Injunction Motion for a Second Time After Remand from Federal Circuit Based...

In September 2013, Murata filed a patent infringement action alleging that Daifuku infringed three of its patents (the "Original Patents"). A year later, in September 2014, Murata moved to amend its Complaint to add two...more

The Evolving Standard for Pleading Direct Patent Infringement

It has been a little more than half a year since the amendments to the Federal Rules of Civil Procedure abrogated Rule 84 and put an end to the Form 18 bare-bones style patent complaint. The question on the minds of many...more

Counsel Sanctioned for Misrepresentations and Citations to “Badly Out of Date” Federal Rules

Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016). After a motion to compel in which the defendant sought to obtain all “relevant and non-privileged” information, the court...more

Delaware District Court Interprets Amended FRCP

The first Delaware opinion that has been issued that addresses either sanctions or proportionality under the new Federal Rules is GN Netcom, Inc. v. Plantronics, Inc. Plaintiff GN Netcom, Inc. (“GN”) filed a motion for...more

New Sedona Conference Commentary Recommends Restricting the Reach of Document Requests Directed to U.S. Affiliates of Overseas...

Earlier this month, the Sedona Conference issued the final version of its “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control.’” The Commentary recommends adopting the “legal right” test to analyze the...more

What Is "Litigation" for Work Product Protection Purposes?

Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms...more

Litigating with the Government: A Different Kind of Plaintiff

Effectively defending a client from an attack by the government requires an understanding of how the government’s priorities differ from those of a commercial litigant and then building your case around that...more

Intellectual Property Newsletter -August 2016

Shearman & Sterling’s IP litigation team has published its quarterly newsletter. The newsletter covers a number of current IP topics, including a look at the America Invents Act, five years in; the U.S. International Trade...more

See You in the Funny Papers: Exterro E-Discovery Comic Anthology

Since James Gillray, English printmaker and the father of the political cartoon, started lampooning the French Revolution, King George III of England, and other figures of his time, editorial cartoons have continued to take...more

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules - The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on...more

E-Discovery Search Methodology Cannot Be Forced Upon Producing Party

Action Item: Companies and individuals involved in litigation that includes e-discovery, should be aware of a decision last week by Magistrate Andrew J. Peck, whose e-discovery decisions are well-regarded in the legal...more

The SEC Retains its House Advantage During Administrative Proceedings

Amendments to the Rules of Practice Do Little to Address Criticism that the Deck is Stacked - Facing pressure from industry practitioners and in the wake of constitutional challenges in multiple jurisdictions, the...more

Winning Commercial Litigation: Terms and Conditions, Strategy and Execution

Commercial litigation is an inevitable part of the business world. Companies make efforts to prevent and avoid disputes. . .however, when such disputes are unavoidable, companies seek to eliminate, or at least minimize, loss...more

Three Million Reasons to Understand the New Federal Rules: Deleting Emails Results in Multi-Million-Dollar Rule 37(e) Sanction

On July 12, a federal district court imposed a $3 million punitive sanction pursuant to the recently amended Federal Rule of Civil Procedure 37(e). GN Netcom, Inc. v. Plantronics, Inc., No. CV 12-1318-LPS, 2016 WL 3792833 (D....more

[Webinar] Six Months of Case Law Under the New FRCP - August 10th, 12:00pm CT

In case law from December 2015 through June 2016, patterns have emerged on how the courts are reacting to the new language in FRCP 26(b)(1) and 37(e). Listen to FRCP guru Tom Allman and the Honorable Magistrate Judge...more

Second Circuit Rules That Judges Can Decertify a Class After a Jury Verdict

The Second Circuit recently held that under Federal Rule of Civil Procedure 23, a district court judge can decertify a class after a jury verdict in favor of the class but before entering judgment, upholding a Southern...more

Federal Court Grants Full Civil Trial to FERC Enforcement Target

The decision will likely affect the strategies of enforcement targets in electric market manipulation cases. For the first time, a federal district judge has held that a review of a Federal Energy Regulatory Commission’s...more

Network Rules Occupy Second Circuit, U.S. Supreme Court

Issues surrounding network rules made headlines recently, with the Second Circuit Court of Appeals rejecting a $7.25 billion deal between Visa and MasterCard and approximately 12 million merchants claiming the networks worked...more

Pokemon Go, a Scary Trend for any E-Discovery Practitioner

One word that I never thought would have any cultural relevance ever again, Pokemon. I remember the days when Nintendo was the “it" thing to have and Pokemon was at the forefront of that fad. But that was the 1990s, so when I...more

Soaking up the Ediscovery Sun: Ing3nious NorCal 2016

This past week, I had the opportunity to attend the Ing3nious NorCal Retreat on Ediscovery and Information Governance in the beautiful Pacific coast town of Half Moon Bay, California. This event signified the fifth...more

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