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Recent and Proposed Amendments to Federal Rules – Annual Report 2018

Newly Adopted Federal Rules Amendments

In April 2018, the Supreme Court transmitted to Congress proposed amendments to the following rules and forms:

• Appellate Rules 8, 11, 25, 26, 28.1, 29, 31, 39, and 41, and Forms 4 and 7;
• Bankruptcy Rules 3002.1, 5005, 7004, 7062, 8002, 8006, 8007, 8010, 8011, 8013, 8015, 8016, 8017, 8021, 8022, and 9025, plus new Rule 8018.1 and new Part VIII Appendix;
• Civil Rules 5, 23, 62, and 65.1; and
• Criminal Rules 12.4, 45, and 49.

Congress took no action to modify or reject these Supreme Court-approved amendments, and the amendments took effect on Dec. 1, 2018.

Among the amendments are revisions to Appellate Rule 25, Bankruptcy Rules 5005 and 8011, Civil Rule 5, and Criminal Rule 49, which continue an effort to develop coordinated rules for electronic filing and service. The amendments require parties represented by counsel to file electronically, with exceptions for good cause and local rules. The amendments also address pro se filing, establish a uniform national signature provision, and address proof of service (except for Bankruptcy Rule 5005). The Criminal Rules no longer incorporate Civil Rule 5. Instead, amendments to Criminal Rule 49 create a stand-alone criminal rule for filing and service that addresses concerns particular to criminal law practice.

Pending Rules Amendments

On Sept. 13, 2018, the Judicial Conference approved the following amendments proposed by its Standing Committee. The proposed amendments were transmitted to the Supreme Court on Oct. 24, 2018:

• Appellate Rules 3, 5, 13, 21, 25, 26, 26.1, 28, 32, and 39;
• Bankruptcy Rules 4001, 6007, 9036, and 9037, and the conversion of Director’s Bankruptcy Forms 4011A and 4011B to Official Bankruptcy Forms 411A and 411B;
• Criminal Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts and Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts, plus new Criminal Rule 16.1; and
• Evidence Rule 807.

The bulk of the proposed amendments to the Appellate Rules reflect changes to proof-of-service requirements consistent with the ongoing shift to electronic filing and service in civil cases. Rule 26.1 proposes changes to the party disclosures required in appellate cases.

The pending amendments to Bankruptcy Rules 4001, 6007, 9036, and 9037 address distinct matters.  Amendments to Bankruptcy Rule 4001(c) – Obtaining Credit – set forth requirements for obtaining court approval of post-petition credit in bankruptcy cases, including the filing of a motion containing detailed disclosures and information, and, exempt Chapter 13 cases from the rule’s requirements.

The amendments to Bankruptcy Rule 6007(b) – Abandonment or Disposition of Property – are designed to specify parties that must be served with a motion to compel the trustee to abandon property under § 554(b) of the Bankruptcy Code, and to make the rule consistent with Rule 6007(a), which deals with abandonment by the trustee or debtor in possession.

The amendments to Rule 9036 – Notice by Electronic Transmission – would allow clerks and parties to provide notices or serve documents (other than those governed by Rule 7004) using the court’s electronic filing system on the system’s registered users. They would also allow service or noticing on any person by any electronic means consented to in writing by that person. The service or notice would be complete upon filing or sending, but it would not be effective if the filer or sender learns that it was not received.

Finally, the proposed amendments to Rule 9037 – Privacy Protection for Filings Made with the Court – add a new subdivision (h) to address the procedure for redacting personal identifiers in previously filed documents that are not in compliance with Rule 9037(a).

Proposed new Criminal Rule 16.1 – Pretrial Discovery Conference; Request for Court Action – originated with a suggestion that Rule 16 – Discovery and Inspection – be amended to address disclosure and discovery in complex criminal cases. Proposed Rule 16.1 reflects consensus among criminal defense attorneys, public defenders, Department of Justice attorneys, discovery experts, and judges. It consists of two subsections:

• Subsection (a) requires that, no later than 14 days after the arraignment, government and defense attorneys must confer and try to agree on the timing and procedures for disclosure.
• After the discovery conference, subsection (b) permits the parties to “ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.” The phrase “determine or modify” contemplates two possible situations. First, if there is no applicable order or rule governing the schedule or manner of discovery, the parties may ask the court to determine when and how disclosures should be made. Alternatively, if the parties wish to change the existing discovery schedule, they must seek a modification. In either situation, the request to “determine or modify” discovery may be made jointly if the parties have reached agreement or by one party if no agreement has been reached.

Proposed Rule 16.1 does not require the court to accept the parties’ agreement or otherwise limit the court’s discretion. Courts retain the authority to establish standards for the schedule and manner of discovery in individual cases, as well as through local rules and standing orders.

Finally, proposed amendments to Rule 5(e) of the Rules Governing Section 2254 Cases and Rule 5(d) of the Rules Governing Section 2255 Proceedings make clear that the moving party has a right to file a reply.

The pending proposed amendments to Evidence Rule 807 seek to improve the rule to address various issues in the application of the residual exception.

If the Supreme Court approves the proposed amendments, they will be transmitted to Congress by May 1, 2019. Barring congressional action to modify or reject them, the amendments would take effect on Dec. 1, 2019. Since official bankruptcy forms do not require Supreme Court approval, form revisions took effect on Dec. 1, 2018, along with the revisions to Official Bankruptcy Forms 417A and 417C that the Judicial Conference approved last year.

Proposed Amendments for Public Comment

In August 2018, proposed amendments to the following rules were published along with a solicitation for comments from the bench, bar, and public:

• Appellate Rules 35 and 40;
• Bankruptcy Rules 2002, 2004, and 8012;
• Civil Rule 30; and
• Evidence Rule 404.

The public comment period closed on Feb. 15, 2019.