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26 Litig. News 1 (2000-2001)

handle is hein.journals/lignws26 and id is 1 raw text is: SFCTION OF LiTIGATION American Bar Association 750 North Lake Shore Drive Chicago, Illinois 60611-4497 B Defending Liberty Nonprofit Organization U.S. Postage PAID American Bar Association LITGA[ ON NEWS INSIDE Contraceptive Coverage • Who Pays for the Pill? Page 2 Hate Crimes - There Is No Crime in New Jersey Page 3 Ethics * Whither Thy Job Goeth ... Page 4 Unpublished Decisions * A Rose Is a Rose Is a Rose Page 5 Xhe Supreme Court has acted to amend key discovery provisions of the Federal Rules of Civil Procedure. In the absence of contrary action by Congress, the amendments will take effect on December 1, 2000. The Court adopted the changes pursuant to the Rules Enabling Act. The new Rules advance laudable objectives designed to serve the litigants and the litigation process, observes Randall D. Noel, Memphis, Co-Chair of the Section of Litigation's Pretrial Practice and Discovery Committee. The amendments will elim- inate the opt-out provisions under which district courts have adopted local rules creat- ing exceptions to Rule 26. Under these amendments, local rules may not waive the initial disclosure requirements. The new Rules will restore national uniformity to disclo- sure practice, state the Advi- sory Committee notes to the pending amendments. The committee observes that [a] striking array of local regimes ... emerged for disclo- sure and related features intro- duced in 1993, when Rule 26 was amended to require manda- tory initial disclosures. The new amendments to Rule 26 will also override contrary standing orders entered by a district court or individual judge. The amendments will restore uniformity to the Rules, while preserving the district courts' power to enter case-specific discovery and scheduling orders, says Noel. There is no question that a myriad of local practices has resulted due to the existing Rules' opt-out provisions, and it has been difficult for out-of- state attorneys to obtain copies of the local rules in many dis- tricts, notes Scott J. Atlas, Houston, Vice-Chair of the Section. Nevertheless, the amend- ments may still defer to local rules in some respects, adds Sheldon M. Finkelstein, Newark, NJ, Co-Chair of the Section's Trial Practice Com- mittee. For example, Rules 26(b)(2) and (f)(3) refer to local rules that may limit discovery. As amended, Rule 26(f) will (Please turn to page 6-Amend) Action stirs administrative law debate Polluted Air Carries EPA to the Courts EPA deserts rule-making process to expedite implementation of Clean Ail By SUSAN J. BECKER LITIGATION NEWS ASSOCIATE EDITOR d itigation is generally used as a nity is entitled to reasonably understand sword to attack an adversary or as a what conduct is required in order to corn- shield to preempt or counter an adver- ply with the Clean Air Act. Where the sary's attack. The Environmental Protec- EPA bypasses the rule-making process in tion Agency (EPA) is attempting to use favor of litigation, a situation is created litigation to enforce the Clean Air Act where judges are unfairly asked to create without first promulgating detailed regu- a regulatory framework in a highly techni- lations as to the scope and effect of the cal area on a case-by-case basis. legislation. The EPA resorted to litigation after This is a matter of immense concern encountering time delays and other to those in the regulated community, impediments during implementation of says Brian L. Duffy, Denver, Co-Chair of the Clean Air Act, according to Janet S. the Section of Litigation's Energy Litiga- Kole, Collingswood, NJ, Co-Chair of the tion Committee. The regulated commu- Section's Individual and Small Firms Committee and former Co-Chair of the Section's rAct Environmental Litigation Committee. The genesis of these cases is that eastern states, like Pennsylvania and New Jersey, are getting socked with pollution emanating from the midwestern states because the prevailing air flow is west to east, Kole explains. The eastern states have been complaining for years about the failure of the agency to pro- tect them from pollution of the more western states. The EPA, I think, sim- ply decided it was time to put the feet of the polluters to the fire. State governments have also jumped into the fray by joining the EPA-initi- ated civil suits as intervenors and (Please turn to page 7-Utilities) Supreme Court Amends Key Provisions of the Federal Rules of Civil Procedure Amendments trump local rules and limit depositions By DOUGLAS E. MOTZENBECKER LITIGATION NEWS ASSOCIATE EDITOR These amendments restore national uniformity to disclosure practice.

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