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Federal Bar Update: Rule amendments taking effect, open for comment

September 19, 2018

FedBarMaley-sigUpcoming rule amendments — In April the Supreme Court approved amendments to Rules 5, 23, 62, and 65.1 of the Federal Rules of Civil Procedure, which will take effect December 1 absent contrary action by Congress. Rule 5 is modernized in various subsections to align with the prevalence of electronic filing, including, for instance, removing the requirement of a certificate of service in electronically filed submissions (which get electronically transmitted by the court’s ECF system to counsel of record).

The Rule 23 amendments are varied and many, and will be of interest to class-action practitioners. Rule 62 is amended in two primary respects.

First, portions of Rule 62 are reorganized without any change in meaning. Second, Rule 62(a) extends the automatic stay to enforce a judgment from 14 to 30 days, unless shortened by the court. This 30-day period coincides with the time for appeal in most civil actions.

Finally, Rule 65.1 is amended to remove the term “surety” and “sureties,” making it clear that a party can obtain a stay of a judgment “by providing a bond or other security.” Limiting Rule 65.1 enforcement procedures to sureties might exclude use of those procedures against a security provider that is not a surety.

Proposed future rule amendments open for comment — In August the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published its proposed rule amendments for public comment. The comment period runs through February 15. Comments are to be submitted electronically via instructions at http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment.

Proposed amendments to the Federal Rules of Appellate Procedure address rehearing and rehearing en banc, and are unremarkable. As for the Federal Rules of Civil Procedure, a proposed amendment to Rule 30(b)(6) would impose a duty to confer regarding the subjects of examination. The proposed amendment reads: “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. A subpoena must advise a nonparty organization of its duty to make this designation and to confer with the serving party.”

The draft Committee Note explains the background and purpose of the proposed change: “Rule 30(b)(6) is amended 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. This amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served, and to continue conferring as necessary, regarding the number and description of matters for examination and the identity of persons who will testify. At the same time, it may be productive to discuss other matters, such as having the serving party identify in advance of the deposition the documents it intends to use during the deposition, thereby facilitating deposition preparation.”

This amendment, if ultimately adopted, would not take effect until 2020. Given the frequency of 30(b)(6) depositions, practitioners and organizations may want to provide written comment. This author sees potential value to conferring on such topics and has had such discussions with some counsel as no doubt others have as well.

Save the Date — The Annual Federal Civil Practice Seminar will be held Friday, December 14, in Indianapolis. Mark your calendars.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90. Opinions expressed are those of the author.
 

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