Rule 4 – Summons

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Amendments Effective Dec. 1, 2015

\r\nAmendments | Summary of Changes | Committee Note | Complete Amended Rule | Additional Resources\r\nRule 4 Amendment in Complete Rule: 4(m)\r\n


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Amended Rule 4(m)

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(m) Time Limit for Service. If a defendant is not served within 12090[CN 1] days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).[CN 2]

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AmendedEffective
Apr. 29, 2015Dec. 1, 2015
Apr. 30, 2007Dec. 1, 2007
Apr. 17, 2000 Dec. 1, 2000
Apr. 22, 1993Dec. 1, 1993
Mar. 2, 1987Aug. 1, 1987
Jan. 12, 1983Feb. 26, 1983
Apr. 29, 1980Aug. 1, 1980
Feb. 28, 1966 July 1, 1966
Jan. 21, 1963July 1, 1963

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Summary of Changes

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Committee Note

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[CN 1] Subdivision (m). The presumptive time for serving a defendant is reduced from 120 days to 90 days. This change, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.

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Shortening the presumptive time for service will increase the frequency of occasions to extend the time. More time may be needed, for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action.

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[CN 2] The final sentence is amended to make it clear that the reference to Rule 4 in Rule 71.1(d)(3)(A) does not include Rule 4(m). Dismissal under Rule 4(m) for failure to make timely service would be inconsistent with the limits on dismissal established by Rule 71.1(i)(1)(C).

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Shortening the time to serve under Rule 4(m) means that the time of the notice required by Rule 15(c)(1)(C) for relation back is also shortened.

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Complete Amended Rule 4

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(a) CONTENTS; AMENDMENTS.

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(1) Contents. A summons must:

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(A) name the court and the parties;

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(B) be directed to the defendant;

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(C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;

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(D) state the time within which the defendant must appear and defend;

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(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

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(F) be signed by the clerk; and

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(G) bear the court’s seal.

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(2) Amendments. The court may permit a summons to be amended.

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(b) ISSUANCE. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.

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(c) SERVICE.

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(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

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(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

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(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

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(d) WAIVING SERVICE.

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(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

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(A) be in writing and be addressed:

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(i) to the individual defendant; or

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(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

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(B) name the court where the complaint was filed;

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(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

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(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

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(E) state the date when the request is sent;

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(F) give the defendant a reasonable time of at least 30 days after the request was sent — or at least 60 days if sent to the defendant outside any judicial district of the United States — to return the waiver; and

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(G) be sent by first-class mail or other reliable means.

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(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

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(A) the expenses later incurred in making service; and

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(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

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(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent — or until 90 days after it was sent to the defendant outside any judicial district of the United States.

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(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

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(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

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(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

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(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

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(2) doing any of the following:

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(A) delivering a copy of the summons and of the complaint to the individual personally;

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(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

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(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

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(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY. Unless federal law provides otherwise, an individual — other than a minor, an in- competent person, or a person whose waiver has been filed — may be served at a place not within any judicial district of the United States:

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(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

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(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

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(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

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(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

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(C) unless prohibited by the foreign country’s law, by:

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(i) delivering a copy of the summons and of the complaint to the individual personally; or

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(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

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(3) by other means not prohibited by international agreement, as the court orders.

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(g) SERVING A MINOR OR AN INCOMPETENT PERSON. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

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(h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

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(1) in a judicial district of the United States:

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(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

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(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of each to the defendant; or

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(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

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(i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.

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(1) United States. To serve the United States, a party must:

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(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought — or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk — or

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(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;

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(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

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(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

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(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

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(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

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(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

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(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

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(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

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(j) SERVING A FOREIGN, STATE, OR LOCAL GOVERNMENT.

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(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

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(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

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(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

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(B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

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(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

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(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

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(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

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(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

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(C) when authorized by a federal statute.

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(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

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(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

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(B) exercising jurisdiction is consistent with the United States Constitution and laws.

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(l) PROVING SERVICE.

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(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

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(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

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(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

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(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

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(3) Validity of Service; Amending Proof. Failure to prove serv- ice does not affect the validity of service. The court may permit proof of service to be amended.

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(m) Time Limit for Service. If a defendant is not served within 12090 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

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(n) ASSERTING JURISDICTION OVER PROPERTY OR ASSETS.

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(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

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(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

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Additional Resources

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John G. Koetl (U.S. District Court Judge, Southern District of New York)
Chilton Varner (King & Spalding)
Derek P. Pullan (Judge, Utah Fourth Judicial District)
99 Judicature, no. 3, Winter 2015, at 26-34R.16
R.26
R.37
R.84
Rule 37(e) - The New Law of Electronic Spoliation
(download)
Gregory P. Joseph (Hage Aaronson LLC)99 Judicature, no. 3, Winter 2015, at 35-42R.37
From Rule Text to Reality - Achieving Proportionality in Practice
(download)
Lee H. Rosenthal (U.S. District Court Judge, Southern District of Texas)
Steven S. Gensler (University of Oklahoma College of Law)
99 Judicature, no. 3, Winter 2015, at 43-46R.01
R.16
R.26
R.34
Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality
(download)
Duke Law School Center for Judicial Studies99 Judicature, no. 3, Winter 2015, at 47–60R.16
R.26
R.34
R.37
The New ESI Sanctions Framework Under the Proposed Rule 37(e) AmendmentsPhilip Favro (Recommind)Richmond Journal of Law & Technology, Volume XXI, Issue 3, March 20, 2015R.37(e)
The 2015 Civil Rules Package As Approved By the Judicial ConferenceThomas Y. AllmanAmerican Bar Association, March 11, 2015R.01
R.04
R.16
R.26
R.26(b)
R.26(c)
R.30
R.31
R.33
R.34
R.36
R.37
R.37(e)
1st Annual Federal Judges Survey: E-Discovery Best Practices & Trends
(download, registration required)
ExterroFebruary 2, 2015R.26(b)(1)
What Does the Future of E-Discovery Look Like Under the (soon to be) Updated FRCP? A ROUNDTABLE PANEL DISCUSSION
(download, registration required)
ExterroNovember 3, 2014
Advisory Committee Makes Unexpected Changes to 37(e), Approves Duke PackageTera E. Brostoff (Bloomberg BNA)Bloomberg BNA, April 11, 2014R.37(e)
[/su_tab]\r\n[su_tab title=”Conferences“]
ConferenceDate & LocationSpeakers & ModeratorsRules Discussed
ConferenceDate & LocationSpeakers & ModeratorsRules Discussed
K&L Gates, Federal Rule Changes Affect e-Discovery - Are You Ready This Time? (Pittsburgh)
(registration required)
December 3, 2015, 8:30 am - 12:15 pm Eastern, Pittsburgh
K&L Gates, Federal Rule Changes Affect e-Discovery - Are You Ready This Time? (Seattle)
(registration required)
December 1, 2015, 1:30 - 5:30 pm Pacific, Seattle
The American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies, Hello “Proportionality,” Goodbye “Reasonably Calculated”: Reinventing Case Management and Discovery Under the ​2015 Civil Rules Amendments
(registration & payment required)
Nov. 10, 2015: New York City
Nov. 12, 2015: Philadelphia
Nov. 12, 2015: Newark
Dec. 3, 2015: St. Louis
Dec. 4, 2015: Atlanta
Dec. 7, 2015: Chicago
Dec. 8, 2015: Washington, DC
Jan. 27, 2016: Los Angeles
Jan. 28, 2016: San Francisco
March 3, 2016: Phoenix
March 4, 2016: Denver
March 31, 2016: Dallas
TBD: Miami
Lee H. Rosenthal (U.S. District Court Judge, Southern District of Texas)
Steven S. Gensler (University of Oklahoma College of Law)
[/su_tab]\r\n[su_tab title=”Decisions“]
NameRules Discussed
NameRules Discussed
INTERNMATCH, INC. v. NXTBIGTHING, LLC, Case No. 14-cv-05438-JST. (N.D.CA. Feb. 8, 2016)R.37(e)
Kissing Camels Surgery Center v. Centura Health Corporation (D. Colo., Jan. 22, 2016)R.34
Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016)R.37(e)
Gilead Sciences v. Merck (N.D. Cal. Jan. 13, 2016)R.26(b)(1)
CAT3 v. Black Lineage (S.D.N.Y. Jan. 12, 2016)R.37(e)
[/su_tab]\r\n[su_tab title=”Presentations“]
PresentationAuthorRules Discussed
PresentationAuthorRules Discussed
Proposed Civil Rules Amendments
(download)
John Barkett (Shook, Hardy & Bacon, L.L.P.)R.01
R.04
R.16
R.26
R.34
R.37
R.84
[/su_tab]\r\n[su_tab title=”Webinars“]
WebinarDateSpeakers & ModeratorsRules Discussed
WebinarDateSpeakers & ModeratorsRules Discussed
Clear Law Institute webinar, The 2015 Amendments to the FRCP, Part II: Rule 26, Proportionality, Judicial Intervention, and Mastering the Discovery Juggernaut
(registration & payment required)
January 21, 2016, 12:00 - 1:30 pm CentralKenneth R. Berman, Moderator (Nutter McClennen & Fish LLP)
Charles R. Bennett Jr.
John G. Koeltl (Judge, U.S. District Court for the Southern District of New York)
Martha Mazzone (Fidelity Investments)
Carmen G McLean
R.26(f)
Clear Law Institute webinar, New eDiscovery Federal Rules Changes
(registration & payment required)
December 18, 2015, 2:00 - 3:15 pm CentralRobert D. Brownstone (Fenwick & West LLP)R.26
R.26(f)
R.37(e)
Bloomberg BNA webinar, An Ounce of Prevention: What Patent Litigators and Litigants Need to Know About Amendments to the Federal Rules
(registration & payment required)
December 16, 2015, 10:00 - 11:00 am CentralWilliam Cory Spence (SpencePC)
Kenneth R. Adamo (Kirkland & Ellis LLP)
Bloomberg BNA webinar, Amending the Federal Rules: Intended and Unintended Consequences
(registration required)
December 8, 2015, 12:00 - 1:30 pm CentralRonald Hedges (Ronald J. Hedges LLC)
Craig B. Shaffer (U.S. Magistrate Judge, District of Colorado)
Thomas Y. Allman (University of Cincinnati College of Law)
Kenneth J. Withers (The Sedona Conference)
Dena C. Sharp (Girard Gibbs LLP)
Ariana J. Tadler (Milberg LLP)
Nextpoint webinar, Changes to the Federal Rules of Civil Procedure (Winter '15)
(registration required)
December 3, 2015, 1:30 - 2:00 pm CentralJulianne Walsh (Nextpoint)
Exterro E-Discovery Day webinar, 3 E-Discovery Trends You Need to Prepare for in 2016
(on-demand, registration required)
December 1, 2015, 4:30 - 5:30 pm CentralBill Tolson (Director of Product Marketing, Actiance)
Patrick Fuller (Director of Legal Analytics, ELM Solutions)
David Houlihan (Principal Analyst, Blue Hill Research)
EDRM E-Discovery Day webinar, Using Advanced Analytics Techniques to Meet the Proportionality Requirements of the new Federal Rules
(registration required)
December 1, 2015, 3:00 - 4:00 pm CentralBob Ambrogi (Legal Journalist and Director of Communications, Catalyst)
George Socha (Co-Founder, EDRM)
John Tredennick (Founder & CEO, Catalyst)
Gabe Luchetta (Product Manager, Catalyst)
Exterro E-Discovery Day webinar, Make Your Job Easier with
E-Discovery Technology

(on-demand, registration required)
December 1, 2015, 3:00 - 4:00 pm CentralDavid Yerich (Director of E-Discovery, UnitedHealth Group)
Tom Mullane (E-Discovery Specialist, United Technology Corporation)
Tara Jones (Lead Paralegal - E-Discovery and Consumer Litigation, AOL, Inc.)
M. Lee Smith Publishers/BLR E-Discovery Day webinar, Amendments to Federal E-Discovery Rules Take Effect December 1: Are You Ready?
(registration required)
December 1, 2015, 2:00 - 3:00 pm CentralTom Shaw (Assistant General Counsel; Legal Department, CCA Facility Support Center, Nashville)
W. Russell Taber, III (Attorney; Riley Warnock & Jacobson PLC, in Nashville)
EDRM E-Discovery Day webinar, eMSAT-1: Understand and Acting on the Results
(on-demand, registration required)
December 1, 2015, 1:30 - 2:30 pm CentralGeorge Socha (Co-Founder, EDRM)
Tom Gelbmann (Co-Founder, EDRM)
Tiana Van Dyk (Litigation Support Manager, Burnet, Duckworth & Palmer LLP)
Exterro E-Discovery Day webinar, Predictive Coding 3.0
(on-demand, registration required)
December 1, 2015, 1:30 - 2:00 pm CentralRalph Losey (E-Discovery Blogger / Attorney, e-Discovery Team Blog)
Actiance E-Discovery Day webinar, FRCP Changes: What, Exactly, are Reasonable Steps to Preserve ESI?
(registration required)
December 1, 2015, 1:00 - 2:00 pm CentralRobert A. Cruz (Senior Director of Information Governance, Actiance, Inc.)
Bill Tolson (Director of Product Marketing, Actiance)
Exterro E-Discovery Day webinar, Taking Advantage of the New FRCP E-Discovery Amendments
(on-demand, registration required)
December 1, 2015, 12:00 - 1:00 pm CentralGeorge Socha (Co-Founder, EDRM)
Craig Ball (Attorney / E-Discovery Blogger, Ball in Your Court Blog)
Hon. Xavier Rodriguez (District Judge, Western District of Texas)
Actiance E-Discovery Day webinar, A Closer Look at Social Media eDiscovery
(registration required)
December 1, 2015, 11:30 am - 12:30 pm CentralJim Shook (Director of eDiscovery and Compliance Practice, EMC)
Bill Tolson (Director of Product Marketing, Actiance)
Exterro E-Discovery Day webinar, 2015 E-Discovery Case Law: Sanction Cases You Need to Know
(on-demand, registration required)
December 1, 2015, 10:30 - 11:30 am CentralHon. Joy Conti (Chief District Judge, Western District of Pennsylvania)
Gareth Evans (Co-Chair E-Discovery Practice Group, Gibson Dunn)
Bob Rohlf (General Counsel, Exterro)
ABA webinar, The December 1, 2015 Amendments to the Federal Rules of Civil Procedure
(registration & payment required)
November 23, 2015, 12:00 - 1:00 pm CentralDavid G. Campbell (U.S. District Court Judge, District of Arizona)
John G. Koetl (U.S. District Court Judge, Southern District of New York)
Paul W. Grimm (U.S. District Court Judge, District of Maryland)
EDRM webinar, Proportionality and the New Rules, sponsored by LexisNexis
(on-demand, registration required)
Recorded October 27, 2015John Barkett (Shook, Hardy & Bacon, LLP)
George Socha (EDRM)
Tom Gelbmann (EDRM)
R.01
R.04
R.16
R.26
R.30
R.31
R.33
R.34
R.37
R.84
EDRM webinar, Relativity Fest 2015 Judicial Panel
(on-demand, registration required)
October 12, 2015Judge Nora Barry Fischer
Judge Andrew Peck
Judge Xavier Rodriguez
Judge David Waxse
David Horrigan (moderator)
[/su_tab]\r\n[/su_tabs]

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