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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
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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Unpublished Decisions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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