Federal courts propose broad evidence, civil, bankruptcy rule changes

Proposed federal court rule changes released for public comment Wednesday would impose new duties on prosecutors who seek to introduce evidence of a criminal defendant’s prior crimes and on lawyers involved in depositions, among other changes.

The United States Courts released numerous proposed amendments that would touch virtually every federal court practice area. Among the most sweeping proposed amendments are those to:

Evidence Rule 404(b) regarding character evidence of other crimes, wrongs or acts. The proposed amendment would add subsection (3) regarding notice in a criminal case. The proposed language reads: “In a criminal case, a prosecutor must: … articulate in the notice the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose … in writing sufficiently ahead of trial to give the defendant a fair opportunity to meet the evidence …”

The Evidence Rule Committee’s note says the amendment would strike the current requirement that prosecutors provide only the “general nature” of such evidence, which “was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose.” The requirement that notice be in writing “provides certainty and reduces arguments about whether notice was actually provided,” the committee note says.

Civil Rule 30(b)(6) regarding attorneys’ duty to confer on a notice or subpoena directed to an organization. The proposed rule change would add the following language: “Before or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

The Advisory Committee on Civil Rules wrote that the change seeks to “respond to problems that have emerged in some cases. Particular concerns have included overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses.” A separate proposed 30(b)(6) rule change “also requires that a subpoena notify a nonparty organization of its duty to confer and to designate one or more witnesses to testify,” according to the committee’s memo.

Other proposed changes announced Wednesday include amendments to these rules:

• Bankruptcy Rule 8012, corporate disclosure statement, adds a new subdivision (b) that “requires disclosure of the name of all of the debtors in the bankruptcy case. The names of the debtors are not always included in the caption of appeals. It also requires, for corporate debtors, disclosure of the same information required to be disclosed under subdivision (a),” according to the note from the Advisory Committee on Bankruptcy Rules.

• Bankruptcy Rule 2002(h), notice to creditors whose claims are filed, revises the time frame in which a court may direct notices to parties following a voluntary chapter 7, chapter 12, or chapter 13 case. The court may order notice “after 70 days following the order for relief under that chapter or the date following the order converting the case to chapter 12 or chapter 13”.

• Bankruptcy Rule 2004(c), compelling attendance and production of documents, would be amended to specify the rule also includes electronically stored information.

• Appellate Rule 35(b), petition for hearing or rehearing en banc, and Appellate Rule 40, petition for rehearing, would be amended to state that responses to these petitions are subject to the same length limits as the petitions.

The proposed amendments also make technical and style changes to other various rules.

Comments on the proposed rule amendments will be accepted here through Feb. 15, 2019.

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