"Traps for the Unwary: New Discovery Rules and Current Developments in Bankruptcy Procedure"

This webinar will highlight recent procedural developments in case law and amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Civil Procedure, effective December 1, 2015. In addition to decisions by the federal courts, important issues include changes in the Civil Rules, which are imported into bankruptcy practice by the Bankruptcy Rules.

New Rules

In these changes, the federal judiciary has reflected a frustration with burdensome discovery activities under the Civil Rules that are disproportionate to the requirements of justice. The proposed amendments substantially change a number of Civil Rules and fall into three main categories.

• Case Management: The amendments should expedite case management, particularly in the early stages of adversary proceedings. This webinar will help insolvency advisors with advance planning in the fast-paced environment of bankruptcy litigation.
• Document Production: There are changes designed to enhance parties' efforts to preserve and produce documents. This webinar will clarify the new expectations and standards governing the parties' obligations to preserve information. It will focus especially on electronically–stored information, for which there are now two types of "loss" — that which is "merely prejudicial" and "intentional loss" -- and on the changing implications of failing to meet those obligations.
• Scope of Discovery: There are amendments intended to limit or streamline discovery. These are intended to set clearer guidelines for the handling of adversary proceedings and contested matters in bankruptcy and to decrease discovery disputes, reduce litigation costs and facilitate the more efficient resolution of disputes. This webinar will clarify these new, limited discovery rules and particularly the concept of "proportionality," which has replaced the long-held rule that any information was discoverable as long as it was reasonably calculated to lead to the discovery of relevant evidence.

This webinar's treatment of the new litigation process should help parties effectively manage disputes under the amended rules.

New Cases

The Supreme Court addressed an unusually large number of bankruptcy issues in 2015. This webinar will address some of the procedural developments of interest to insolvency advisors:

• In Baker Botts L.L.P. v. ASARCO LLC, the Supreme Court held that Code section 330 does not permit bankruptcy courts to award fees to professionals employed by the bankruptcy estate under subsection 327(a) for work performed in defending a fee application in court.
• The Supreme Court decided in Bullard v. Blue Hills Bank that a bankruptcy court's denial of confirmation of a proposed Chapter 13 plan with leave to amend was not a "final" order that the debtor can immediately appeal. Also in 2015, the Eighth Circuit Court of Appeals similarly held in In re Civic Partners Sioux City, LLC that an order denying confirmation of a Chapter 11 plan is interlocutory.
• In Wellness International Network, Ltd. v. Sharif, the Supreme Court held that Article III permits bankruptcy judges to adjudicate "Stern claims" with the parties' knowing and voluntary consent.

Supplemental Materials

Panel