Recent and Proposed Amendments to Federal Rules – Annual Report 2020

Rules Changes for Possible Future Court Disruptions

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) temporarily authorized the courts to hold certain criminal proceedings by videoconference or teleconference under limited circumstances, beyond what the Federal Rules of Criminal Procedure ordinarily permit.

The legislation also directed the Judicial Conference and the Supreme Court to consider possible rules amendments to mitigate the adverse effects on court operations of future emergencies declared by the President, such as another pandemic, a terrorist attack, natural disasters, or the failure of information technology infrastructure.

As a first step, the Conference’s Rules Committees solicited public comments on challenges encountered in federal or state court proceedings by lawyers, judges, parties, or the public during the pandemic, including any instances in which the existing rules proved too inflexible to accommodate necessary workarounds. Over 60 substantive comments were received.

In July, a virtual conference was held to solicit from judges, federal defenders, private attorneys, and Department of Justice representatives their ideas for best practices for conducting criminal proceedings during sustained court interruptions. The Standing Committee also asked the rules advisory committees to identify rules that should be amended to account for emergency situations and to develop drafts of proposed amendments. The drafts were discussed and refined during the advisory committees’ fall meetings. Their proposals for rules changes will be considered by the Standing Committee at its January 2021 meeting.

Newly Adopted Federal Rules Amendments

On April 27, 2020, the Supreme Court adopted the following rules and transmitted them to Congress:

• Appellate Rules 35 and 40
• Bankruptcy Rules 2002, 2004, 8012, 8013, 8015, and 8021
• Civil Rule 30(b)(6)
• Evidence Rule 404  

Congress took no action to modify or reject the Supreme Court-adopted amendments, and the amendments took effect on Dec. 1, 2020.

The amendments make the following changes, among others:

• Establish length limits for responses to petitions for a panel rehearing or a hearing en banc (Appellate Rules 35 and 40);
• Conform the subpoena provision for an examination in a bankruptcy case with Civil Rule 45 by requiring that the subpoena issue from the court where the action is pending by an attorney admitted to practice in that court, even if the deposition is pending in another district (Bankruptcy Rule 2004);
• Require parties in civil litigation to confer in advance about the matters for examination when directing a deposition notice or subpoena to an organization (Civil Rule 30(b)(6)); and
• Expand the prosecutor’s notice obligations under Evidence Rule 404 (Character Evidence; Crimes or Other Acts) by deleting the current requirement that the prosecutor must disclose only the “general nature” of the bad act evidence, and instead requiring the prosecutor to provide notice of the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose. 

Pending Rules and Forms Amendments

At its Sept. 15, 2020, session, the Conference approved proposed amendments to Appellate Rules 3 and 6, and Appellate Forms 1 and 2. These amendments clarify the requirements for a notice of appeal to avoid mistakes by litigants that can cause the inadvertent loss of appellate rights.

The Conference also approved Bankruptcy Rules 2005, 3007, 7007.1, and 9036. 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 a 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. The proposed amendments were transmitted to the Supreme Court on Oct. 20, 2020.

Proposed Amendments for Public Comment

In August 2020, proposed amendments to the following rules and forms were published along with a solicitation for comments from the bench, bar, and public:

• Appellate Rule 25
• Bankruptcy Rules 1007, 1020, 2009, 2012, 2015, 3002, 3010, 3011, 3014, 3016, 3017.1, 3017.2 (new), 3018, 3019, 5005, 7004, and 8023; the first set of restyled bankruptcy rules consisting of the 1000 and 2000 series of bankruptcy rules; and Official Forms 101, 122B, 201, 309E-1, 309E-2, 309F-1, 309F-2, 314, 315, and 425A
• Civil Rule 12 and Supplemental Rules for Social Security Review Actions Under 42 U.S.C. § 405(g)
• Criminal Rule 16

The public comment period closes on Feb. 16, 2021. The proposed amendments and the advisory committees’ reports explaining the proposed changes are posted on the Judiciary’s website.

The proposed amendments would, among other changes, extend the privacy protections afforded in Social Security benefit cases to Railroad Retirement Act benefit cases; implement the Small Business Reorganization Act of 2019, P.L. 116-54, which creates a new subchapter V of Chapter 11 for the reorganization of small business debtors; establish new supplemental rules for certain Social Security cases filed in district courts; and expand the scope of expert discovery in criminal cases.