Recent and Proposed Amendments to Federal Rules – Annual Report 2019

Newly Adopted Federal Rules Amendments

In April 2019, the Supreme Court transmitted to Congress proposed amendments to the following rules:

• Appellate Rules 3, 5, 13, 21, 25, 26, 26.1, 28, 32, and 39;
• Bankruptcy Rules 4001, 6007, 9036, and 9037; and
• Criminal Rule 16.1 (new); Rule 5 of the Rules Governing Section 2254 Cases in the U.S. District Courts and Rule 5 of the Rules Governing Section 2255 Proceedings for the U.S. District Courts; and Evidence Rule 807.

Congress took no action to modify or reject these Supreme Court-approved amendments, and the amendments took effect on Dec. 1, 2019.

These amendments change federal practice in important ways. Changes to the appellate rules reflect revised requirements for proving an individual or organization has been served with court documents. The revisions are necessary as more courts move to the electronic service of records. The amendments also change the party disclosures required in appellate cases. New Criminal Rule 16.1 addresses discovery and disclosure obligations in criminal cases, requiring attorneys for the government and defense to confer not later than 14 days after arraignment to try to agree on the timing and procedures for disclosure. After the discovery conference, the parties may “ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.”

The 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. A party must now provide advance written notice of the intent to use the “residual exception” in Evidence Rule 807, and a court will evaluate the statement under a new standard: whether the statement is supported by sufficient guarantees of trustworthiness, considering the totality of the circumstances and any corroborating evidence.     

Legislative amendments to the Bankruptcy Code prompted rules and forms changes. As a result of the Aug. 23, 2019, amendments to the definition of “current monthly income” in the Bankruptcy Code made by the Honoring American Veterans in Extreme Need Act of 2019, the Advisory Committee on Bankruptcy Rules approved technical conforming amendments to three official bankruptcy forms (122A-1, 122B, and 122C-1), effective Oct. 1, 2019. Another Bankruptcy Code amendment created a new alternative track for small business bankruptcies in Chapter 11 (the Small Business Reorganization Act of 2019) that will go into effect on Feb. 19, 2020, long before the normal three-year rules approval process can run its course. To aid courts in addressing procedural gaps until the bankruptcy rules can be amended, the Advisory Committee published interim Bankruptcy Rule amendments and recommended that courts adopt them by general order or as local rules effective Feb. 19, 2020.

Pending Rules and Forms Amendments

On Sept. 17, 2019, the Judicial Conference approved the following amendments proposed by its Standing Committee. The proposed amendments were transmitted to the Supreme Court on Oct. 23, 2019:

• Appellate Rules 35 and 40;
• Bankruptcy Rules 2002, 2004, 8012, 8013, 8015, and 8021, and Official Form 122A-1;
• Civil Rule 30(b)(6); and
• Evidence Rule 404.

The proposed amendments would, among other things, establish length limits for responses to petitions for rehearing (Appellate Rules 35 and 40); require parties in civil litigation to confer in advance about the matters for examination when deposing a corporate representative; and expand the prosecutor’s notice obligations under Evidence Rule 404 (Character Evidence; Crimes or Other Acts) by requiring the prosecutor to explain the permissible purpose for the admission of evidence that the defendant committed prior bad acts. The purpose cannot be that the defendant has a propensity to commit similar crimes. 

Proposed Amendments for Public Comment

In August 2019, proposed amendments to the following rules and forms were published, along with a solicitation for comments from the bench, bar, and public:

• Appellate Rules 3, 6, and 42, and Forms 1 and 2;
• Bankruptcy Rules 2005, 3007, 7007.1, and 9036; and
• Civil Rule 7.1.

The public comment period closed on Feb. 19, 2020.

If approved, the proposed amendment to Bankruptcy Rule 9036 dealing with electronic noticing in bankruptcy cases would potentially reduce noticing costs to the Judiciary by several million dollars each year. The proposed amendment would require most creditors who receive a large number of paper notices (initially over 100 paper notices per month) to sign up for electronic noticing.