Recent and Proposed Amendments to the Federal Rules - Annual Report 2015
The federal rules of practice and procedure govern practice in the federal courts. The Judicial Conference Committee on Rules of Practice and Procedure (“Standing Committee”) and its five advisory rules committees “carry on a continuous study of the operation and effect” of the federal rules as directed by the Rules Enabling Act.
Newly Adopted Federal Rule Amendments
In April 2015, the Supreme Court adopted and transmitted to Congress a proposed amendment to Rule 1007 of the Federal Rules of Bankruptcy Procedure, as well as a package of proposed amendments to the Federal Rules of Civil Procedure, which included amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55, and a proposal to abrogate Rule 84 and the Appendix of Forms. Congress took no action to modify or reject these Supreme Court-approved amendments, and the amendments took effect on December 1, 2015.
The changes to the Civil Rules are the result of more than four years of work by the Civil Rules Advisory Committee and are based on input from federal and state judges, bar associations, organizations representing the interests of both plaintiffs and defendants, and some of the country’s most prominent academics and lawyers. The amendments aim to improve civil discovery in four distinct ways: promoting greater cooperation among parties and lawyers during the discovery process; ensuring that discovery is proportional to the issues in the case; encouraging earlier and more active involvement of judges to manage the discovery process; and providing a new rule for addressing the challenges associated with the preservation and loss of electronically stored information (ESI). Collectively, these rule changes provide a unique opportunity to improve the delivery of civil justice in federal court by making discovery more efficient and less expensive without sacrificing any party’s need to obtain the evidence needed to prove its case. Success of these changes will depend on their implementation, and the Civil Rules Advisory Committee has worked with the Federal Judicial Center to develop educational materials as resources for the bench and bar.
Pending Rules Amendments
The Conference approved and transmitted to the Supreme Court on October 9, 2015, the following amendments proposed by the Standing Committee:
- Appellate Rules 4, 5, 21, 25, 26, 27, 28, 28.1, 29, 32, 35, and 40, and Forms 1, 5, and 6, and proposed new Form 7;
- Bankruptcy Rules 1010, 1011, 2002, 3002.1, 9006(f), new Rule 1012;
- Civil Rules 4, 6, and 82; and
- Criminal Rules 4, 41 and 45.
The Conference subsequently approved and forwarded to the Supreme Court on October 29, 2015, a supplemental set of proposed amendments to Bankruptcy Rules 7008, 7012, 7016, 9027 and 9033 (known as the “Stern Amendments”). If the Supreme Court approves these proposed amendments, the Supreme Court will transmit them to Congress by May 1, 2016. Barring congressional action to modify or reject the proposals, the amendments will take effect on December 1, 2016.
The Conference also approved at its September 2015 session replacement of certain Official Bankruptcy Forms with substantially revised, reformatted, and renumbered versions. These forms are part of a forms-modernization project that was begun by the Advisory Committee on Bankruptcy Rules in 2008. Among other things, the 2015 forms introduce different versions of case-opening forms for individual debtors and non-individual debtors. The revised forms are easier for debtors to understand and complete, and are designed to work with scheduled enhancements to the federal courts’ case-opening and electronic case management system. The revised forms took effect December 1, 2015, without the need for Supreme Court review, as did updates to virtually all bankruptcy forms.
Proposed Amendments Published for Public Comment
The Advisory Committee on Evidence Rules published proposed amendments that would abrogate Rule 803(16)—the ancient documents exception to the hearsay rule—and would amend Rule 902 to enable authentication of certain electronic evidence by a qualified person’s certification.
The Advisory Committee on Bankruptcy Rules published proposed amendments to Bankruptcy Rules 1001 and 1006. Rule 1001 is amended to incorporate changes made to Civil Rule 1 in 1993 and 2015. Rule 1006 clarifies that courts may not refuse a petition or summarily dismiss a case for failure to make initial installment payments at the time of filing. The amendment emphasizes that an individual debtor’s petition must be accepted for filing so long as the debtor submits a signed application to pay the filing fee in installments and even if a required initial installment payment is not made at the same time.
These proposed rule amendments were published for comment by the bench, bar, and public. The public comment period ended on February 16, 2016.
Proposed changes to Bankruptcy Rules 2002, 3002, 3007, 3012, 3015, 4003, 5009, 7001, and 9009, in connection with proposed new Official Bankruptcy Form 113, a national plan form for chapter 13 of the Bankruptcy Code, all published for public comment in 2014-15, have not been approved or forwarded to the Conference at this time, but remain under consideration.