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Federal courts open comment period on proposed rule amendments

August 15, 2017

The United States Courts’ Judicial Conference Advisory Committees on Appellate, Bankruptcy, Criminal and Evidence Rules is seeking public comment on a series of proposed rule amendments, including changes related to hearsay rules and the use of technology in court proceedings.

Multiple amendments to Federal Rule of Evidence 807, which deals with residual exceptions to the hearsay rule, were proposed. Among those proposals was the removal of the requirement that proffered hearsay hold “equivalent” circumstantial guarantees of trustworthiness.

According to a comment to the proposed amendment, the so-called “equivalence” standard was difficult to apply and has not served to limit a court’s discretion to admit hearsay. Instead, the amendment would allow courts to “proceed directly to a determination of whether the hearsay is supported by guarantees of trustworthiness,” while specifically considering corroborating evidence.

Additionally, the proposed amendment to Rule 807 lays out three adjustments to the rule’s notice provision. First, the hearsay proponent would be required to disclose the “substance” of the proffered statement. Second, pretrial notice of the statement must be made in writing, including an electronic format. Finally, the amended notice provision would allow for a good-cause exception, as found in Rule 404(b).

The Judicial Conference committees also approved amendments to several appellate rules, including Appellate Rules 3 and 13, which would be changed to require notices of appeal to be “sent” to the appropriate parties, rather than mailed. This change in language is meant to reflect a shift toward electronic service.

The committee also proposed an amendment to Appellate Rule 26.1 that would require disclosure of organizational victims in criminal cases to alert judges to possible conflicts of interest. Additionally, the amendment would require disclosure of all debtors in bankruptcy proceedings. Appellate Rules 28 and 32, which are related to Rule 26.1, would likewise be amended to reflect the proposed changes to Rule 26.1

Similar to the proposed amendments to Appellate Rules 3 and 13, amendments to Federal Rules of Bankruptcy Procedure 2002 and 9036 would allow for notices and services to be made electronically. Further, Official Form 410 would include language allowing filers to receive updates via email.

Other bankruptcy rules that would be amended include Rule 4001, which would have new language clarifying that Rule 4001(c), related to obtaining credit, would not apply to Chapter 13 cases. A proposed amendment to Rule 6007 would add language that specifies which parties must be served with an abandonment motion, while Rule 9037 would include new language that prescribes a procedure for the belated redaction of documents.

A proposed amendment to Federal Rule of Criminal Procedure would create Rule 16.1 , adding language requiring government attorneys and counsel for a defendant to confer on the timetable and procedures for pretrial disclosure within 14 days of an arraignment. Language under the proposed Rule 16.1(b) would also allow the parties to ask the court to modify the procedures for pretrial disclosure. A comment notes the new rule would be particularly important to cases involving electronically stored information or other complex discovery, applying a “general standard that the parties can adapt to the circumstances.”

Finally, identical language was inserted into both Rule 5 of the Rules governing Sections 2254 and 2255 to allow judges to set a deadline for a petitioner to file a reply to a respondent’s answer, unless that deadline has already been set by a local rule. However, the rule does not include language that would allow a court to prevent such a filing, as a petition always has the right to file a reply.

The comment period for the proposed rule changes opened this month and will remain open until February 2018. Those who want to provide comment can do so through the Regulations.gov portal. Further, members of the public who want to present testimony on the proposed rule amendments can do so at one of the scheduled public hearings in Washington, D.C., Chicago, Boston, Phoenix and Pasadena, California, between September 2017 and January 2018.

The full text of the proposed amendments, access to the comments portals and the full public hearing schedule can be found here.

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