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Federal RulemakingWhat's New
Supreme Court Action: New Rules and Amendments Approved 4/23/08 On April 23, 2008, the Supreme Court of the United States approved the following new rules and amendments to the Federal Rules of Bankruptcy, Civil, and Criminal Procedure:
The new rules and amendments have been transmitted to Congress and will take effect on December 1, 2008, unless Congress enacts legislation to reject, modify, or defer the amendments. Advisory Rules Committees Actions: Spring 2008 Meetings Evidence Rules Committee Approved for Publication Proposed Rules Amendments At its May 1-2, 2008, meeting, the Advisory Committee on Evidence Rules approved for publication proposed restyled Evidence Rules 101-415. The proposed style amendments are part of a larger project to restyle the entire Federal Rules of Evidence to make them simpler and easier to read without changing substantive meaning. The advisory committee also approved for publication a proposed amendment to Evidence Rule 804(b)(3), extending the corroborating circumstances requirement to all proffered declarations against penal interest. The proposed amendments will be transmitted to the Standing Committee for consideration at its June 2008 meeting, with a recommendation to publish them for public comment. (The proposed amendments will not be published piecemeal, but instead will be held until all the Evidence Rules have been restyled. The entire package is expected to be published in August 2009.) The advisory committee will consider the next style package (Evidence Rules 501-706) at its fall 2008 meeting. Criminal Rules Committee Approved Proposed Rules Amendments At its April 28-29, 2008, meeting, the Advisory Committee on Criminal Rules approved proposed amendments to Criminal Rules 7, 32, and 32.2 relating to criminal forfeiture; Criminal Rule 41 on the seizure of electronically stored information; Rule 11 of the Rules Governing § 2254 and § 2255 Cases on procedures concerning a certificate of appealability; and Criminal Rules 5.1, 7, 8, 12.1, 12.3, 29, 33, 34, 35, 41, 45, 47, 58, and 59 governing the computation of time under the rules. The advisory committee will forward its recommendations to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments will be transmitted to the Judicial Conference for consideration at its September 2008 session. The advisory committee also approved for publication proposed amendments to Criminal Rule 6 (allows a court to receive the return of a grand jury indictment by video conference), Criminal Rule 15 (permits the limited taking of a deposition of a witness outside the United States without the presence of the defendant), and Criminal Rule 32.1 (clarifies the burden of proof regarding the release or detention of a person on probation or supervised release). The advisory committee will forward its recommendations to publish to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments are expected to be published in August 2008 and will be posted at http://www.uscourts.gov/rules/newrules1.htm. Appellate Rules Committee Approved Proposed Rules and Form Amendments At its April 10-11, 2008, meeting, the Advisory Committee on Appellate Rules approved amendments to Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28.1, 30, 31, 39, and 41 regarding the computation of time under the rules. The advisory committee also approved proposed amendments to Appellate Rules 4, 22, 26, and new Rule 12.1. The advisory committee will forward its recommendations to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments and new rule will be transmitted to the Judicial Conference for consideration at its September 2008 session. The advisory committee also approved for publication proposed amendments to Appellate Rule 1 on the definition of "state" and Appellate Form 4 to conform to new rules on privacy. The advisory committee will forward its recommendations to publish to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments are expected to be published in August 2008 and will be posted at http://www.uscourts.gov/rules/newrules1.htm. Civil Rules Committee Approved Proposed Rules Amendments At its April 7-8, 2008, meeting, the Advisory Committee on Civil Rules approved amendments to Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81, Supplemental Rules B, C, and G, and Illustrative Civil Forms 3, 4, and 60 regarding the computation of time under the rules. The advisory committee also approved proposed amendments to Civil Rules 13, 15, 48, and 81, and new Rule 62.1, and approved in principle a proposed amendment to Civil Rule 8. The advisory committee will forward its recommendations to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments and new rule will be transmitted to the Judicial Conference for consideration at its September 2008 session. The advisory committee also approved for publication proposed amendments to Civil Rule 26 on the discovery of expert witnesses and Civil Rule 56 on summary judgment. The advisory committee will forward its recommendations to publish to the Committee on Rules of Practice and Procedure for consideration at its June 2008 meeting. If approved, the proposed amendments are expected to be published in August 2008 and will be posted at http://www.uscourts.gov/rules/newrules1.htm. Bankruptcy Rules Committee Approved
At its March 27-28, 2008, meeting, the Advisory Committee on Bankruptcy Rules approved amendments to Bankruptcy Rules 2016, 4008, 7052, 7058, 8002, 9006, 9015, 9021, 9023, and new Rules 1021, 2007.2, 2015.2, and 5008, 7058, and Official Forms 8, 9F, 10, 23, 27, and Exhibit D to Official Form 1. If the proposed rule amendments are approved by the Standing Committee, Judicial Conference, and Supreme Court, and if Congress takes no action to the contrary, the proposed amendments and new rules will take effect on December 1, 2009. If approved by the Standing Committee and Judicial Conference, the revisions to Official Forms 8, 9F, 10, 23, and Exhibit D to Official Form 1 will take effect on December 1, 2008. Revisions to Official Form 27 will take effect on December 1, 2009. [The advisory committee also approved proposed amendments on the computation of time to Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027, and 9033. The proposed amendments are scheduled to take effective on December 1, 2009.] The agenda materials for the meeting are posted at http://www.uscourts.gov/rules/Agenda_Books.htm. The Advisory Committee also approved for publication proposed amendments to Bankruptcy Rules 1014, 1015, 1018, 5009, 9001, and new Rules 1004.2, 1018.1, and 5012. The proposed amendments will be published for comment in August 2008 and will be posted at http://www.uscourts.gov/rules/newrules1.htm. Judicial Conference Action: March 2008 Session On March 11, 2008, the Judicial Conference of the United States met to consider, among other things, the report of the Committee on Rules of Practice and Procedure. The Committee presented no action items to the Conference, but did report on pending rules projects. The Committee's report is posted at http://www.uscourts.gov/rules/Reports/ST03-2008.pdf. The report may also be found on this page, http://www.uscourts.gov/rules/reports.htm. Senate Passes Evidence Rule 502: 2/27/08 On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See Sen. Rept. No. 110-264. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007. Unlike other amendments to the federal rules of practice and procedure that take effect unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b). Comment Period Ends:
Rules Published August 2007
The public comment period ended on February 15, 2008, for the following
proposed rules and forms amendments and new rules:
Proposed Amendments to the Federal Rules of Appellate,
Bankruptcy, Civil, and Criminal Procedure - August 2007
Proposed Time-Computation Amendments to the Federal Rules
of Appellate, Bankruptcy, Civil, and Criminal Procedure - August
2007
The proposed amendments, comments submitted on the amendments,
and other information may be accessed by clicking on the link, http://www.uscourts.gov/rules/proposed0709.htm.
Standing Rules Committee Approved Proposed Rules Amendments for Publication At its January 14-15, 2008, meeting, the Committee on Rules of Practice and Procedure adopted the recommendations of the Advisory Committees on Appellate, Bankruptcy, and Criminal Rules and approved publishing for public comment the following proposed rules amendments:
The proposed amendments, which are expected to be published in August 2008, will be posted at http://www.uscourts.gov/rules/newrules1.htm. Finally, the Committee adopted the recommendation of the Advisory Committee on Criminal Rules and will transmit to the Chief Justice of the Supreme Court of the United States a recommendation that a crime victims' rights advocate not be appointed as a permanent member to the advisory committee. The public hearings scheduled in January and February 2008 on proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that were published for comment in August 2007 are cancelled. The public comment period on the proposed rules amendments expires on February 15, 2008. Comments submitted to date are posted at http://www.uscourts.gov/rules/proposed0807-1.htm. Congressional Action: Developments in the 110th Congress, December 2007 A report summarizing legislative action affecting the Federal Rules of Practice, Procedure, and Evidence taken during the first session of the 110th Congress is now posted. The report may be found on the "Legislation" page or by clicking on this link, http://www.uscourts.gov/rules/Legislative_Report_Jan_2008.pdf Revisions to Bankruptcy Official Form 1 Approved: Effective January 1, 2008 On December 21, 2007, the Executive Committee on behalf of the Judicial Conference adopted the recommendation of the Committee on Rules of Practice and Procedure and approved revisions to Bankruptcy Official Form 1, effective on January 1, 2008. The revisions to Official Form 1 conform to new Federal Rule of Bankruptcy Procedure 9037, which was effective on December 1, 2007. Bill Introduced to Enact Evidence Rule 502: 12/11/07 On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007. Unlike other amendments to the federal rules of practice and procedure that take effect unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b). Federal Rules of Evidence w/Navigational Aids: Available Now We have added several navigational aids to the current Federal Rules of Evidence, making them easier and more convenient to use. First, "bookmarks" were added to the PDF document to make it easy to find and locate rules and subdivisions. Second, invisible hyperlinks were added to the table of contents, which are linked to the underlying rules and subdivisions. Finally, the rules are in a text-searchable format, making it easy to search for and copy text. We plan on modifying all the federal rules of practice and procedure once they are made available by the U.S. House of Representatives Committee on the Judiciary, which we expect to be in mid-to late January 2008. The modified rules will be posted at http://www.uscourts.gov/rules/newrules4.html. Bankruptcy Official Forms 22A, 22B, 22C Approved: Effective January 1, 2008 On November 21, 2007, the Executive Committee on behalf of the Judicial Conference approved the recommendation of the Committee on Rules of Practice and Procedure and approved revisions to Official Bankruptcy Forms 22A, 22B, and 22C to be effective on January 1, 2008. Changes in these forms, which implement the "means test" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub. L. No. 109-8), were originally recommended for action at the September 2007 Conference session, but the recommendation was withdrawn when changes in the Internal Revenue Service (IRS) standards governing means test calculations were announced. With the latest revisions, the forms conform to the new IRS standards, which also take effect on January 1, 2008. The forms are posted at http://www.uscourts.gov/bankform/index.html#means Congressional Action: Rules Effective 12/1/07 Congress has taken no action on the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, approved by the Supreme Court on April 30, 2007. Accordingly, the following amendments to the rules will take effect on December 1, 2007:
In accordance with 28 U.S.C. § 2074(a) and the April 30, 2007, orders of the Supreme Court, they will govern all proceedings commenced on or after December 1, 2007, and "insofar as just and practicable" all proceedings then pending. The text of the amended rules and extensive supporting documentation can be found at: http://www.uscourts.gov/rules/congress0407.htm. The amendments scheduled to take effect on December 1, 2007, include revisions to the Appellate, Bankruptcy, Civil, and Criminal Rules that implement the E-Government Act of 2002. They require that personal identification information be redacted from documents filed with the court — individuals' Social Security and taxpayer identification numbers, names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses. The new rules are derived from the privacy policy adopted by the Judicial Conference in September 2001 that addresses concerns arising from public access to electronic case filings. In essence, the Conference policy requires that documents in case files generally be made available electronically to the same extent that they are available at the courthouse, provided that certain personal identifiers are redacted from the public file. Also scheduled to take effect on December 1, 2007, are the comprehensive style amendments to Federal Rules of Civil Procedure 1-86 and style revisions to the Illustrative Civil Forms. The Civil Rules are amended to clarify and simplify them without changing their substantive meaning. The restyled Civil Rules are the third set of restyled federal rules, preceded by the restyling of the Federal Rules of Appellate Procedure, which became effective in 1998, and the Federal Rules of Criminal Procedure, which became effective in 2002. More information on the new rules and forms, including the text of the rules amendments, excerpt reports of the Rules Committees, and a chart listing each instance where a current Civil Rule was renumbered in the Restyle Civil Rules are posted on the web site at: http://www.uscourts.gov/rules/congress0407.htm. National Appellate and Civil Forms: Now Posted in WordPerfect and RTF Formats We have posted the six Appellate Forms, appended to the Federal Rules of Appellate Procedure, and the newly restyled Illustrative Civil Forms to the Federal Rules of Civil Procedure, which take effect on December 1, 2007. The forms are posted in WordPerfect and RTF (Word compatible) formats. The forms are offered as templates based on the official published forms, but are not identical to them. Language in the forms may require modification before the document can be filed with the court. Red font is used to draw attention to these instances. Instructions are enclosed in angle brackets and alternative phrases appear in square brackets. The Appellate and Civil forms are posted at: http://www.uscourts.gov/rules/newrules4.html. Request for Comment on Bankruptcy Rule 8002: Due by February 15, 2008 In August 2007, the Rules Committees published for public comment proposed amendments to the Appellate, Bankruptcy, Civil, and Criminal Rules governing the computation of time under the rules. Among other things, Bankruptcy Rule 8002 is proposed to be amended to set 14 days as the deadline for filing a notice of appeal from a judgment, order, or decree in a bankruptcy case. The Advisory Committee on Bankruptcy Rules invites public comment on whether the proposed extension from 10 to 14 days would cause any material disruption in bankruptcy practice. Comment is also invited on whether the deadline should be extended to 30 days, making it consistent with the 30-day general civil appellate deadline imposed by Federal Rule of Appellate Procedure 4(a)(1). Comments on both issues can be submitted electronically to: Rules_Comments@ao.uscourts.gov. Comments should be submitted by February 15, 2008. Foreign Intelligence Surveillance Court Draft Procedures: Under Consideration The Foreign Intelligence Surveillance Court is currently considering draft Procedures for Review of Petitions Filed Under Section 105B(h) of the Foreign Intelligence Surveillance Act of 1978, as Amended. The procedures may be accessed by clicking the link, http://www.uscourts.gov/rules/FISC_105B_rules_Oct_2007.pdf. The procedures may also be accessed by clicking on the link titled, "FISA Rules and Procedures" located in the menu on the left. Advisory Rules Committee Actions: Fall 2007 Meetings Evidence Rules Committee Considered Proposed Rule Amendments At its November 16, 2007, meeting, the Advisory Committee on Evidence Rules reviewed protocols and procedures for restyling the Federal Rules of Evidence. The advisory committee is undertaking a project to rewrite the Evidence Rules to make them simpler and easier to read, without changing substantive meaning. The advisory committee also: (1) reviewed a report on case law developments following the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004); (2) considered a possible amendment to Evidence Rule 804(b)(3), which would extend the corroborating circumstances requirement to all proffered declarations against penal interest; and (3) considered possible actions regarding H.R. 1592, the "Local Law Enforcement Hate Crimes Prevention Act of 2007" and S. 1105, the "Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007." Civil Rules Committee Considered Proposed Rules Amendments At its November 8-9, 2007, meeting, the Advisory Committee on Civil Rules considered reports from its Subcommittee on Rule 26 and Subcommittee on Rule 56 regarding preliminary proposals to amend Civil Rule 26 on discovery of expert witnesses and Civil Rule 56 on summary judgment practice. The Advisory Committee agreed to carry forward consideration of the proposals to its spring 2008 meeting. Appellate Rules Committee Approved
for Publication At its November 1-2, 2007, meeting, the Advisory Committee on Appellate Rules approved for publication proposed amendments to Federal Rules of Appellate Procedure 1 (definition of "state" to include District of Columbia and any commonwealth, territory, or possession of the United States) and 29 (require disclosure of authorship or monetary contributions re amicus briefs, modeled after Supreme Court Rule 37.6). The advisory committee will transmit its recommendations to the Committee on Rules of Practice and Procedure for its consideration. Criminal Rules Committee Approved for Publication Proposed Rules Amendments At its October 1-2, 2007, meeting, the Advisory Committee on Criminal Rules approved the recommendation of its subcommittee on crime victims and approved for publication proposed amendments to Criminal Rules 5 (initial appearance), 12.3 (notice of a public-authority defense), and 21 (transfer for trial). The proposed amendments implement the Crime Victims' Rights Act, 18 U.S.C. § 3771. The Advisory Committee also approved for publication proposed amendments to Criminal Rules 32.1 (revoking or modifying probation or supervised release) and 46 (release from custody; supervising detention). These proposed amendments authorize a court to issue an arrest warrant and summons where the government seeks to revoke a defendant's release on bail or supervised release. The Advisory Committee also considered other proposed rules amendments, most of which were referred to subcommittees for further study. Judicial Conference Action: September 2007 Session The Judicial Conference met on September 18, 2007, and approved the recommendations of the Committee on Rules of Practice and Procedure and approved the following proposed amendments to the rules:
(Official Forms 22A, 22B, and 22C were withdrawn by the Committee at the request of the Advisory Committee on Bankruptcy Rules) The proposed amendments — with the exception of
the Official Forms — will be transmitted to the Supreme Court with
a recommendation that they be approved. The Committee's report and
appendix may be accessed by clicking on this link, http://www.uscourts.gov/rules/Reports/ST09-2007.pdf
Standing Rules Committee's Report to Judicial Conference: September 2007 Standing Rules Committee's Report to Judicial Conference The September 2007 report of the Committee on Rules of Practice and Procedure to the Judicial Conference is now posted at http://www.uscourts.gov/rules/jc0907.html. The report contains recommendations adopted by the committee at its June 11-12, 2007, meeting. (At the request of the Advisory Committee on Bankruptcy Rules, the Committee on Rules of Practice and Procedure withdrew proposed revisions to Official Forms 22A and 22C, which had been approved at the committee's June 11-12 meeting.) Proposed Amendments for Public Comment: August 15, 2007 At its January and June 2006 and June 2007 meetings, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules and approved for publication over 90 time-computation provisions found in the Appellate, Bankruptcy, Civil, and Criminal Rules, with a view to simplifying the provisions and eliminating inconsistencies among them. These proposed amendments, which are set forth below, comprise the majority of the rules being published for comment. The Rules Committees also propose amending a handful of other rules, which are also set forth below.
The proposed amendments to the rules and Official Forms may be accessed by clicking on the link, http://www.uscourts.gov/rules/newrules1.htm. The proposed amendments and new rules may also be accessed by clicking on the link titled "Proposed Rules Amendments Published for Comment" in the upper left-hand corner of the screen. The public comment period for the proposed amendments and new rules ends on February 15, 2008. Standing Committee Action: June 2007 Meeting Standing Rules Committee Approved Proposed Rules and Forms Amendments and New Rules;Approved Proposed Amendments and New Rules for Publication At its June 11-12, 2007, meeting, the Committee
on Rules of Practice and Procedure approved the recommendations
of the Advisory Committees on Bankruptcy, Criminal, and Evidence
Rules and approved the following proposed amendments and new rules: The Committee also approved a letter to Congress
accompanying proposed new Evidence Rule 502 and a report to Congress
on creating a harm-to-child exception to marital privileges. The Committee also approved the recommendations of the Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules and approved publishing for public comment the following proposed rules and forms amendments and new rules, which include a number of amendments on the computation of time under the rules: • Appellate Rules 4, 5, 6, 10, 12, 15, 19,
22, 25, 26, 27, 28.1, 30, 31, 39, 40, and 41, and new Rule 12.1;
The proposed amendments, which are expected to be published in August 2007, will be available on this page, http://www.uscourts.gov/rules/newrules1.htm. Finally, the Committee considered reports on Standing Orders and Sealing Cases. Amendments to the Federal Rules of Civil Procedure: Effective 12/1/07 The amendments to the Federal Rules of Civil Procedure, which were approved by the Supreme Court on April 30, 2007, have been re-posted to the web site. The amendments include minor typographical revisions that were inadvertently omitted from the previous rule amendments posted on the web site. The final, revised amendments—which include Comprehensive Restyle Civil Rules 1-86; Civil Rules 4, 5.1, 9, 11, 14, 16, 26, 30, 31, 33, 34, 37, 40, 45, 50, 71.1, and 78; and new Civil Rule 5.2—are now posted and may be accessed on this page, www.uscourts.gov/rules/supct1106/CV_CLEAN.pdf. The amendments and new rule have been transmitted to Congress and will take effect on December 1, 2007, unless Congress enacts legislation to reject, modify, or defer the amendments.
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