Supreme Court Adopts Amendments To Federal Rules

Supreme Court Adopts Amendments To Federal Rules


Rule Amendments

Fed. R. App. P. 1, 4, 29; Appellate Form 4; Fed. R. Civ. P. 8, 26, 56; Civil Form 52; Fed. R. Evid. 804

U.S. Orders of Apr. 28, 2010

The Supreme Court has approved amendments to the Federal Rules of Appellate Procedure, Civil Procedure, and Evidence, to take effect December 1, 2010, unless Congress acts to provide otherwise.

On April 28, 2010, the Supreme Court issued orders adopting amendments to the Federal Rules of Appellate and Civil Procedure. On the same date, the Court transmitted the new and amended Rules to Congress. The Court also adopted and transmitted amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Criminal Procedure [see U.S. Orders of Apr. 28, 2010)]. The new and amended Rules will take effect on December 1, 2010, unless Congress enacts legislation to provide otherwise [28 U.S.C. § 2074(a)].

The amended Appellate, Civil, and Evidence Rules are briefly discussed below. The full text of the amended Rules may be found at the Federal Courts' Home Page on the Internet at

Appellate Rules and Form.  Appellate Rule 1, which defines the scope of the Appellate Rules, has been amended to clarify that the word "state," when used in the Rules, includes the District of Columbia and any U.S. commonwealth or territory [see Fed. R. App. P. 1(b), as amended]. Thus, for purposes of the Appellate Rules, "state" includes the District of Columbia, Guam, American Samoa, the U.S. Virgin Islands, the Commonwealth of Puerto Rico, and the Commonwealth of the Northern Mariana Islands.

Appellate Rule 4, which governs the time for filing an appeal, has been amended to correct the Rule's cross-reference to Civil Rule 58(a), which was renumbered in 2007 [see Fed. R. App. 4(a)(7), as amended].

Appellate Rule 29, which governs amicus curiae briefs, has been amended to require an amicus curiae (other than a state) to disclose in the amicus brief whether a party's counsel authored the amicus brief in whole or in part and whether a party or a party's counsel contributed money with the intention of funding the preparation or submission of the brief, and to identify every person (other than the amicus, its members, and its counsel) who contributed money that was intended to fund the brief's preparation or submission [see Fed. R. App. P. 29(c)(5), as amended]. This provision is intended to deter counsel from using an amicus brief to circumvent length limits on the parties' briefs. It might also help judges assess whether the amicus itself considers the issue sufficiently important to justify the cost and effort of filing an amicus brief.

Appellate Form 4, the affidavit accompanying a motion to proceed on appeal in forma pauperis, has been amended to limit the disclosure of personal identifying information, in conformity with the privacy protections added to Appellate Rule 25(a)(5) in 2007.

References.  20A Moore's Federal Practice (3d Ed.) §§ 329.13, 349.04.

Civil Rules and Form. Civil Rule 8 has been amended to delete "discharge in bankruptcy" from the rule's list of affirmative defenses that must be asserted in a responsive pleading [see Fed. R. Civ. P. 8(c)(1), as amended].

Amendments to Civil Rule 26 extend work-product protection to draft reports by testifying expert witnesses and generally to communications between testifying expert witnesses and counsel. The protection for such communications is subject to exceptions for communications that relate to compensation for the expert's study or testimony or that identify facts, data, or assumptions provided by counsel and considered by the expert in forming opinions to be expressed [see Fed. R. Civ. P. 26(b)(4), as amended]. These amendments are intended to address problems that arose from the 1993 amendments to the Rule, which had been interpreted by some courts to allow discovery of all draft expert-witness reports and all communications between counsel and testifying expert witnesses [see, e.g., Elm Grove Coal Co. v. Director, Office of Workers' Comp. Programs, 480 F.3d 278, 303 (4th Cir. 2007)].

Rule 26 has also been amended to provide that if a party is relying on a witness who will provide expert testimony but is not required to provide a report in discovery (because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony), the party must disclose the subject matter of the witness's testimony and summarize the facts and opinions that the witness is expected to offer [see Fed. R. Civ. P. 26(a)(2), as amended].

Civil Rule 56 has been completely revised. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a pinpoint citation to the record supporting that assertion; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary-judgment motion; (3) setting out the court's options when an assertion of fact has not been properly supported by the party or responded to by the other party, including giving an opportunity to properly support or address the fact, treating the fact as undisputed for purposes of the motion, and granting summary judgment if supported by the motion and supporting materials; (4) setting a time limit, subject to variation by local rule or by court order in a particular case, for the filing of a summary-judgment motion; and (5) explicitly recognizing that partial summary judgment may be entered. The changes are intended to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts. The standard for granting summary judgment is unchanged [see Fed. R. Civ. P. 56, Advisory Committee Note of 2010].

Amended Rule 56(a) returns to the use of the word "shall" in describing when summary judgment is to be entered ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."). In 2007, the restyling project of the Rules had replaced the former "shall" with "should" [see Fed. R. Civ. P. 56(c)(2)]. Returning to the word "shall," which was the basis for years of case law interpretation before the 2007 restyling, will allow that case law to continue to develop.

Official Form 52, Report of the Parties' Planning Meeting, has been amended to restore two provisions that took effect in 2006 but were inadvertently omitted during the 2007 revision of the Forms. The provisions require that a discovery plan include (1) a reference to the way electronically stored information will be handled in discovery or disclosure, and (2) a reference to an agreement between parties regarding claims of privilege or work-product protection [see Fed. R. Civ. P. 16(b)(3)].

References.  2 Moore's Federal Practice (3d Ed.) § 8.08[1]; 3 Moore's Federal Practice (3d Ed.) § 16.33[1]; 6 Moore's Federal Practice (3d Ed.) §§ 26.23[2], 26.80; 11 Moore's Federal Practice (3d Ed.) Ch. 56.

Evidence Rule 804. Evidence Rule 804 has been amended to require the government, in a criminal case, to show corroborating circumstances as a condition for admission of an unavailable declarant's statement against penal interest [see Fed. R. Evid. 804(b)(3), as amended]. Under the pre-amendment version of the Rule, only the defendant is required to make such a showing [see Fed. R. Evid. 804(b)(3)]. In addition, nonsubstantive stylistic amendments have been made to this provision [see Fed. R. Evid. 804(b)(3), as amended].

References.  4 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual, § 804.02[9] (9th ed. 2006); 5 Weinstein's Federal Evidence, § 804.06[5][b][i] (Matthew Bender 2d ed.).

Editor's Note:  This is an excerpt from the June 2010 issue of Moore's Federal Practice Update.]