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    Locke Lord QuickStudy: Amendments to the Federal Rules Outlined by Proposed Effective Dates

    Locke Lord Publications

    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, 2021‎
    3

    • 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, 2022‎
    4

    • 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.‎

     

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    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.‎
    4 https://www.uscourts.gov/file/28441/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. ‎

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