Commercial Litigation and Arbitration

The Five Most Significant Developments in Federal Practice in 2013

1.  The amendments to federal subpoena practice (discussed in the article posted here).

2.  The Tenth and Eleventh Circuit decisions strictly limiting the protection of the 2010 Expert Witness amendments to (i) communications between lawyers and testifying experts, and (ii) drafts of expert reports -- leaving everything else open to discovery (see our blog posts of December 22 and 26, 2013).

3.  The proposed Duke Amendments to the Federal Rules of Civil Procedure, all of which are salutary, with the exception of the proposed change to Rule 1 -- because it will have unintended, adverse effects under the improper purpose clause of Rule 11 (if a lawyer is deemed not to have "employed" the Rules "to secure the ... speedy and inexpensive determination of every action and proceeding) and under 28 USC § 1927 (which is already interpreted to "reach ... dilatory practices" -- see B. Willis CPA, Inc. v. Public Serv. Co. of Okla., 511 F. App'x 753 (10th Cir. 2013)).

4.  The proposed spoliation amendment to the Federal Rules of Civil Procedure -- Rule 37(e) -- which would largely insulate negligent spoliation from serious sanction.

5.  The Supreme Court's clear message that Grable federal question jurisdiction is quite limited (see our February 22, 2013, blog post excerpting Gunn v. Minton, holding that no federal jurisdiction exists over state court legal malpractice claims arising out of patent matters, except perhaps rarely).


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