Amending the Federal Rules, including the Federal Rules of Appellate Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Evidence, and Federal Rules of Bankruptcy Procedure, generally takes about three years. The initial rendition of a proposed change to the Federal Rules, known eponymously as the Preliminary Draft, is published by the Committee on Rules of Practice and Procedure (the “Standing Committee”) of the Judicial Conference, and from there, proposed amendments make their way up to the United States Supreme Court and finally to the United States Congress for final approval.1
Currently there are three different cycles of amendments to the Federal Rules, which will become effective over the next couple of years. With a nod to an orderly “business as usual,” amidst the chaos plaguing many of our actual businesses this year, the latest Preliminary Draft of amendments to the Federal Rules was published in late August, and those amended rules are not expected to become effective until December of 2022. First published in a Preliminary Draft during late 2018, when Covid-19 wasn’t even a twinkle in the eyes of our over-burdened public health system, the earliest amendments to the Federal Rules in the present cycle become effective in December of this year. Outlined below are the pending amendments, organized broadly by the year they will become effective, including summaries of the particular changes incorporated into each amended rule.
December 1, 20202
- Federal Rules of Appellate Procedure 35 and 40.
- Federal Rule of Appellate Procedure 35(e) amendments clarify that the length limits applicable to petitions for hearing or rehearing en banc also apply to responses if requested by the court.
- Amendments to Rule 40(a) clarify that the provisions of Rule 40(b) regarding a petition for panel rehearing also apply to a response to such a petition, if the court orders a response, and stylistically the amendment changes the language to refer to a “response,” rather than an “answer,” consistent with Rule 35.
- Federal Rules of Bankruptcy Procedure 2002, 2004, 8012
- Federal Rule of Bankruptcy Procedure 2002 amendments add cases filed under chapters 12 and 13 to certain sub-sections, conform respective time periods to the deadlines for filing proofs of claim, and confirm that transmittal of notice of relevant deadlines to the U.S. trustee is still required.
- Amended Rule 2004 refers expressly to the production of electronically stored information, in addition to the general production of documents, and provides that subpoenas are now properly issued from the court where the bankruptcy case is pending and by an attorney authorized to practice in that court, regardless of where the Rule 2004 examination is to occur.
- BR 8012 amendments conform to recent FRAP amendments, encompassing nongovernmental corporations that seek to intervene on appeal, and expand corporate and other disclosure requirements on appeal.
- Federal Rule of Civil Rule 30
- Amended Federal Rule of Civil Procedure 30(b)(6) requires the serving party and the named organization to confer before, or promptly after, the deposition is noticed and continue conferring as necessary, regarding the number and description of matters for examination and the identity of persons who will testify.
- Federal Rule of Evidence 404
- Amendments to Federal Rule of Evidence 404(b) impose additional notice requirements on the prosecution in a criminal case and incorporate clarifications to the text and headings of the rule.
December 1, 20213
- Federal Rules of Appellate Procedure 3 and 42
- Rules 3 and 4, concomitantly with corresponding forms, are amended to incorporate merger principles by including this language: “The notice of appeal encompasses all orders that merge for purposes of appeal into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.” But the amended rule enables deliberate limitations of the notice of appeal according to this language in the amendment: “An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal.”
- Rule 42 is amended to require the circuit clerk to dismiss an appeal if all parties agree and to clarify that the requisite fees are court fees, not attorney’s fees.
- Bankruptcy Rules 2005, 3007, and 9036
- Rule 2005 amendment clarifies intent to address attendance or appearance conditions at the relevant proceedings, not to impose penalties for failure to appear.
- Rule 3007 is amended to clarify that the special service method required by Rule 7004(h) may be used for service on insured depository institutions, not on credit unions.
- Amended Rule 9036 is “going green” by requiring certain high-volume notice recipients currently being served with paper copies to switch to electronic service.
December 1, 20224
- Federal Rule of Appellate Procedure 25
- Amended Rule 25 would afford the same privacy protections in Railroad Retirement cases as in Social Security cases by limiting access to electronically stored filings.
- Federal Rules of Bankruptcy Procedure, Restyled Parts I and II; Rules 1007, 1020, 2009, 2012, 2015, 3002, 3010, 3011, 3014, 3016, 3017.1, 3017.2 (new), 3018, 3019, 5005, 7004, and 8023
- Stylistic and conforming amendments included at length throughout Parts I and II of the Federal Rules of Bankruptcy Procedures.
- Amendments to Rules 1007, 1020, 2009, 2012, 2015, 3010-11, 3014, 3016, 3017.1 and 3017.2, 3018, and 3019 would create modified and new procedures to govern cases consistent with enactment of the Small Business Reorganization Act of 2019, which gives a small business debtor the option of electing to be a debtor under subchapter V of chapter 11.
- Amended Rule 3002(c)(6) would allow an extension of time to file proofs of claim for both domestic and foreign creditors if “the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim.”
- Proposed changes to Rule 5005 would allow papers to be sent to the U.S. trustee by electronic means, and would eliminate the requirement that the filed statement evidencing transmittal be verified.
- Proposed amendments to Rule 7004 clarify that when serving an agent of a corporation, partnership or other unincorporated association, the agent's position or title may be used instead of the specific name, and if the recipient’s name is used, the name need not be correct if service is made to the proper address and position or title.
- Amended Rule 8023 clarifies that dismissal is mandatory upon agreement by the parties.
- Federal Rule of Civil Procedure 12 and Supplemental Rules for Social Security Review Actions
- Rule 12 amendment allows 60 days to serve a responsive pleading for a U.S. officer or employee sued in an individual capacity for an act or omission in connection with duties performed on behalf of the U.S., after the court denies a Rule 12 motion or postpones its disposition until trial, in order to afford adequate time for a potential collateral-order appeal when the Rule 12 motion raises an official immunity defense.
- The Supplemental Rules establish a simplified procedure for review of an individual’s claims on a single administrative record. These new rules apply only to final decisions by the Commissioner of Social Security.
- Federal Rule of Criminal Procedure 16
- Amendments to Federal Rule of Criminal Procedure 16 specify the required timing and content of expert witness disclosures, preserving the reciprocal structure of the current rule.
As these anticipated amendments begin to go live at the end of this year,5 Locke Lord is available to answer questions about the changes to the Federal Rules and how those changes may impact pending litigation in federal courts across the country.
1 See, e.g., infra note 2.
2 Congressional Package – April 2020; Supreme Court Package – October 2019; Standing Committee Report to the Judicial Conference – September 2019; and Preliminary Draft of Proposed Amendments to the Federal Rules – August 2018
3 https://www.uscourts.gov/file/28347/download; https://www.uscourts.gov/file/26533/download.
5 While these Federal Rule amendments are expected to go into effect as planned, they can be delayed for various reasons or withdrawn entirely. Up-to-date federal rule and form changes are found in advisory committees' most recent books and records.