3 Days Gone: New Federal Rules Take Effect Today

A quick reminder to all federal court practitioners: 2016 just keeps piling it on. Not content to simply let us rest after everything we’ve been through this year, new Federal Rules of Civil Procedure take effect today, and the primary change this time is eliminating the extra 3 days you used to get to respond when something was served electronically.

Out with the old Rule 6(d), and in with the new:

(d) Additional Time After Certain Kinds of Service.

When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

So, time to change those calendaring rules, or you might blow a deadline.

Rule 4 also got amended a bit as well. Here’s a summary of all the changes taking effect today

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Now go back 3 days…

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What You Need to Know About the New Federal Rules in 90 Seconds or Less

Litigation partner Brian Jones describes the important changes to the Federal Rules of Civil Procedure in this fast-paced video:

Posted in Class Actions, Coverage Disputes, Discovery, E-Discovery, Federal Practice | Tagged , , , | Leave a comment

SCOTUS: Unaccepted Settlement Offers Don’t Moot Class Actions

Panorama_of_United_States_Supreme_Court_Building_at_Dusk

Today, the Supreme Court of the United States ruled that unaccepted offers of settlement under Federal Rule of Civil Procedure 68 do not moot a named plaintiff’s claims in a putative class action. In Campbell-Ewald Co. v. Gomez, Justice Ginsburg, writing for the 5-4 majority, held that “an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.”

The majority opinion adopts the reasoning from Justice Kagan’s superbly-written dissent in Genesis HealthCare Corp. v. Symczyk, which all Courts of Appeals have adopted post-Genesis. (If you’ve not read Kagan’s dissent in Genesis, do so now. You’ll be hard pressed to find better legal writing.) Here’s the money quote from Genesis:

When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.

Thus, SCOTUS has now made clear that because a named plaintiff’s individual claim cannot be mooted by an expired settlement offer, “that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified,…a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”

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Supreme Court Gives Power Back to Trial Courts in Patent Cases

A great post from our friends at the Bose Intellectual Property Blog about a significant Supreme Court case that brings patent appeals in line with the appellate standards governing non-patent cases.

Bose Intellectual Property Blog

The Supreme Court today issued a 7-2 decision which should go a long way to reduce almost automatic appeals in patent cases. The Federal Circuit appeals court was created to handle all patent appeals. The Roberts Court has been telling the Federal Circuit again and again that most of the moving parts in a patent lawsuit are just like what federal trial court judges decide in non-patent cases. They did it again today in Teva Pharmaceuticals USA v. Sandoz.

Patents must be written in words, and a major hurdle in patent disputes is deciding what they mean. The parties tell the court what they think the words mean, and they usually have strong disagreements on a few key terms. This stage of the lawsuit is called claim construction, and experts often testify about how the words are understood in the specialized area where the patent is useful, or art. It…

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Happy 2015 from the Bose Litigation Blog!

To all our friends and readers, we wish you a happy, healthy, and prosperous 2015!

2015 New Year celebration

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Brian Jones Presents at IndyBar’s “Discoverability of Social Media” Seminar

Today, Brian Jones of Bose McKinney & Evans LLP and Elizabeth Lally of Rubin & Levin, LLP, discussed the “Discoverability of Social Media” at the Indianapolis Bar Association’s headquarters in Indianapolis. Here is a pdf of the presentation:

Be sure to share with all your friends–even those who keep posting those incriminating “duck-face” selfies…

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This Message Will Self-Destruct: Confide, Snapchat, and How New Self-Destructing Messaging Services Could Alter the Discovery Landscape

Bose Law and Technology Blog

Self-destructing messages used to be found only in spy shows like “Mission Impossible.” But new messaging apps like teen-favorite Snapchat and the newly released Confide have brought the concept of self-destructing messages into the mainstream. Each of these apps has, at its core, the goal of making sure that the pictures or text you want to communicate are visible to the recipient for only a certain period of time. After that, they’re gone and cannot be retrieved.

If you haven’t used apps like these before, here’s what they do. Snapchat allows you to take pictures and send them to recipients who can only view them for a time period that you determine, and then they’re gone. They’re not stored on your device in any way (unless, of course, you manage to take a screenshot while the picture is on the screen, which is not easy to do since you have to…

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