John Maley: More federal court rule amendments are on their way

In April the U.S. Supreme Court transmitted proposed federal rule changes to Congress. Absent Congressional action, which is unlikely, the rules package will take effect Dec. 1. Congress has not historically blocked or modified federal rule amendments proposed by the Supreme Court.

Highlights of key changes are outlined here.

Federal Rules of Appellate Procedure: Rule 39 addressing costs will be modified significantly, including how taxed costs are allocated among parties, and including a new provision setting a reconsideration process for allocation of costs. Reconsideration motions on costs will be due 14 days from the entry of judgment with allocation of costs. Also, each Circuit is to set by local rule the maximum rate for taxing costs of copies of briefs and appendices, not to exceed the generally charged rate where the clerk’s office is located.

Separately, significant amendments for appeals in bankruptcy cases will occur, particularly with respect to direct appeals to the court of appeals.

Federal Rules of Civil Procedure: Proposed amendments to Rules 16 and 26 are scheduled, along with a new Rule 16.1. Regarding Rule 16, subsection (b) will be amended to include “the timing and method for complying with Rule 26(b)(5)(A), which addresses claiming privilege or work-product protection.

Rule 26(f) is amended similarly to require counsel—in their Rule 26(f) discovery conference – to include in their discovery plan the ‘timing and method for complying with Rule 26(b)(5)(a).’ The Committee Notes are informative on this change, providing: “Rule 26(f)(3)(D) is amended to address concerns about application of the requirement in Rule 26(b)(5)(A), which requires that producing parties describe materials withheld on grounds of privilege or as trial-preparation materials in a manner that ‘will enable other parties to assess 26 the claim.’ Compliance with Rule 26(b)(5)(A) can involve very large burdens for all parties.”

The comments continue: “Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to recognize the need for flexibility. This amendment directs the parties to address the question of how they will comply with Rule 26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about complying with Rule 26(b)(5)(A) in scheduling or case management orders.”

The comments further add: “This amendment also seeks to provide the parties maximum flexibility in designing an appropriate method for identifying the grounds for withholding materials. Depending on the nature of the litigation, the nature of the materials sought through discovery, and the nature of the privilege or protection involved, what is needed in one case may not be necessary in another. No one-size-fits-all approach would actually be suitable in all cases.”

Separately, Rule 16.1 is new, and addresses initial Rule 16 conferences in multidistrict litigation. The Committee Notes explain this new Rule as follows: “The Multidistrict Litigation Act, 28 U.S.C. § 1407, was adopted in 1968. It empowers the Judicial Panel on Multidistrict Litigation to transfer one or more actions for coordinated or consolidated pretrial proceedings to promote the just and efficient conduct of such actions.

The number of civil actions subject to transfer orders from the Panel has increased since the statute was enacted but has leveled off in recent years. These actions have accounted for a substantial portion of the federal civil docket. There has been no reference to multidistrict litigation (MDL proceedings) in the Civil Rules. The addition of Rule 16.1 is designed to provide a framework for the initial management of MDL proceedings.”

Bad AI: Readers will recall that the issuance of a Report and Recommendation sanctioning counsel $15,000 “for submitting to the Court and opposing counsel, on three separate occasions, briefs that contained citations to non-existent cases.” Scott v. Hoosiervac, LLC, No. 2:24-cv-00326-JPH-MJD (S.D. Ind. 2025). Offending counsel objected to the Report and Recommendation, which was considered by Judge Hanlon, who rejected the argument that any sanctions are moot because counsel has suffered significant harm to his professional reputation. Judge Hanlon relied upon Rule 11(c), and the court’s interest in having the rules of procedure obeyed.

Judge Hanlon then took into account counsel’s steps to educate himself on responsible use of AI and adhere to the highest standards of professional conduct moving forward, as well as the collateral consequences counsel has experienced including harm to reputation and referral to the Indiana Disciplinary Commission.

Judge Hanlon adopted in part the Report and Recommendation, writing, “The Court concludes that a sanction of $6,000 ‘suffices to deter repetition of the conduct or comparable conduct by others similarly situated.’ Fed. R. Civ. P. 11(c)(4). This substantial sanction is appropriate because, as Magistrate Judge Dinsmore explained, Mr. Ramirez filed briefs containing non-existent AI-generated legal citations on three separate occasions and the penalties imposed on other attorneys for similar misconduct ‘have evidently failed to act as a deterrent.’” Scott v. Hoosiervac, LLC, No. 2:24-cv-00326-JPH-MJD (May 28, 2025).

Save the Date:The Annual Federal Civil Practice seminar featuring Indiana federal judges is set for Friday, December 12th in Indianapolis, live and virtual, from 1:30 – 4:45.•

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John Maley ([email protected]) is a partner with Barnes & Thornburg, LLP, practicing employment law, federal and state litigation, and appeals.