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Recent and Proposed Amendments to Federal Rules – Annual Report 2023

Restyled Bankruptcy Rules

In September 2023, the Judicial Conference of the United States approved a set of Restyled Bankruptcy Rules, the fifth and final set of federal rules to be comprehensively amended to update the style, culminating a project that began nearly 30 years ago. If approved by the Supreme Court and if Congress takes no contrary action, the Restyled Bankruptcy Rules go into effect on Dec. 1, 2024.

The amendments do not change the substance of the bankruptcy rules but use language that is more consistent and easier to understand. The Advisory Committee on Bankruptcy Rules took care to reject any proposed revision that might result in a substantive change. In addition, the committee declined to modify certain well-established and widely used phrases, such as “meeting of creditors,” to avoid undue disruption to practice and expectations. Finally, the restyling project did not change rules language that has been enacted by Congress.

The restyled rules were published for comment over several years in three sets. After each publication period, the Advisory Committee made recommendations for final approval based on the comments received, the advice of the style consultants used in restyling the appellate, civil, criminal, and evidence rules, and the general drafting guidelines and principles used in those restyling efforts. The committee made formatting changes to ensure a clearer presentation, as well as stylistic changes to reduce inconsistent, ambiguous, repetitive, or archaic words.

Newly Adopted Federal Rules Amendments

On April 24, 2023, the Supreme Court adopted the following rule amendments and new rules and transmitted them to Congress. Congress took no action to modify or reject the amendments and rules, and they took effect on Dec. 1, 2023.

• Rule Emergencies and Juneteenth National Independence Day: Amendments to multiple rule sets reflect two areas of coordinated rulemaking. First, in response to the Coronavirus Aid, Relief, and Economic Security Act of 2020, the Judicial Conference and the Supreme Court adopted rules amendments to mitigate the adverse effects on court operations of possible future emergencies, such as another pandemic, a terrorist attack, a natural disaster, or the failure of information technology (IT) infrastructure. Those emergency rules — amendments to Appellate Rules 2 and 4, as well as new Bankruptcy Rule 9038, Civil Rule 87, and Criminal Rule 62 — give the Judicial Conference the authority to declare a rules emergency; the emergency rules specify the provisions that apply during a rules emergency. Second, the adoption of June 19 as a national holiday resulted in amendments to Appellate Rules 26 and 45, Bankruptcy Rule 9006, Civil Rule 6, and Criminal Rules 45 and 56, adding Juneteenth National Independence Day to the legal holidays listed in those federal rules.
• Bankruptcy Rules 3011 and 8003: The Bankruptcy Rule 3011 amendment requires the clerk of court to provide searchable access to data on the court’s website about funds deposited under §347 of the Bankruptcy Code. The Rule 8003 amendment conforms the rule’s language to amendments recently made to Appellate Rule 3, clarifying the requirements for the contents of a notice of appeal, and is designed to avoid the inadvertent loss of appellate rights.
• Civil Rules 15 and 72: The amendment to Civil Rule 15 reduces uncertainty about the time allowed to amend a pleading. The amendment to Civil Rule 72 provides that a magistrate judge’s findings and recommendations must be served on the parties as provided in Civil Rule 5(b), allowing electronic service and updating language that previously required the clerk to “mail” a copy.
• Criminal Rule 16: The technical amendment to Criminal Rule 16(b)(1)(C)(v) corrects a typographical error in a cross reference concerning expert witness disclosures.
• Evidence Rules 106, 615, and 702: The amendment to Rule 106 allows a statement that completes earlier evidence and corrects a misimpression to be admitted over a hearsay objection and would cover all statements, whether or not they are recorded. The amendment to Rule 615 specifies that a court may exclude witnesses from the courtroom and adds that the court has discretion to issue further orders to prohibit disclosure of trial testimony to excluded witnesses. The amendments to Rule 702 clarify that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. The amendments also specify the bounds of an expert’s testimony.

Pending Rules and Forms Amendments

At its Sept. 12, 2023, session, the Judicial Conference approved several proposed rules that will take effect on Dec. 1, 2024, if approved by the Supreme Court and if Congress takes no action to the contrary. Those rules include the Restyled Bankruptcy Rules discussed above and the rules listed below:

• Appellate Rules 32, 35, 40, and the Appendix on Length Limits.
• Bankruptcy Rules 1007, 4004, 5009, 7001, 9006, new Rule 8023.1, and Official Form 410A.
• Civil Rule 12.
• Evidence Rules 611, 613, 801, 804, and 1006, and new Rule 107. 

The additional proposed rules and forms would, among other changes, transfer the contents of Appellate Rule 35 to Rule 40, consolidating the rules regarding rehearing; require individual bankruptcy debtors to submit a provider’s certificate of completion of a course in personal financial management, rather than an official form, as a condition of discharge; clarify that a federal statute that specifies another time supersedes the times provided in Civil Rule 12 concerning deadlines for responsive pleadings; and create new Evidence Rule 107 to provide guidance for the use of illustrative aids.

Proposed Amendments for Public Comment

In August 2023, proposed new and amended rules and forms were published, along with a request for comments from the bench, bar, and public: 

• Appellate Rules 6 and 39.
• Bankruptcy Rules 3002.1, 8006, and Official Bankruptcy Forms 410, 410C13-M1, 410C13-M1R, 410C13-N, 410C13-NR, 410C13-M2, and 410C13-M2R.
• Civil Rules 16, 26, and new Rule 16.1.

The proposed rules and forms would, among other changes, clarify the procedure for certain bankruptcy appeals; establish a procedure in Chapter 13 bankruptcy cases for review of the status of a mortgage claim by the debtor or case trustee; provide for early development of a method for the parties to comply with the requirement in Civil Rule 26(b)(5)(A) that producing parties describe discovery materials withheld on grounds of privilege or as trial-preparation materials; and establish a framework for the initial management of multidistrict litigation proceedings by the transferee judge.