A Summary for Bench and Bar (September 1995)
Comments Due by March 1, 1996
Request For Comment On Proposed Amendments To The Federal Fules of
Practice and Procedure
The full text of the proposed rules amendments and explanatory Committee
Notes are set out in the Request for Comment pamphlet. The following
synopsis highlights the proposed rules amendments. It is intended to
stimulate greater public comment and participation in the rulemaking
process. The synopsis is largely drawn from the committees' reports, which
are also set out in the Request for Comment pamphlet.
The rules committees welcome all comments, whether favorable, adverse, or
otherwise. All comments from the public on these proposals will be
considered individually and seriously by the respective rules committees,
which consist of experienced trial and appellate lawyers, scholars, and
Written comments should be received by the Secretary to the Rules
Committee no later than March 1, 1996. An opportunity is also provided to
the public to appear at scheduled public hearings to make a statement
regarding any of the proposals. Requests to appear at a public hearing
must be received by the Secretary to the Rules Committee no later than 30
days prior to the date for the public hearing.
The proposed amendments will become effective on December 1, 1997, if -
following the public comment period - they are in turn approved, with or
without revision, by the relevant advisory committee, the Standing
Committee, the Judicial Conference, and the Supreme Court, and if they are
not altered by Congress.
I. Proposed Amendments to the Federal Rules of Civil Procedure
(A) Rule 47 (Selection of Jurors) would be amended to allow the parties to
supplement the court's examination and orally question prospective jurors
under reasonable limits on time, manner, and subject matter determined by
the trial court in its discretion. A similar proposed amendment to
Criminal Rule 24 is recommended by the Advisory Committee on Criminal
Rules. (See Section II.)
The advisory committee is particularly interested in receiving comment on
present voir dire procedures and on the adequacy of voir dire conducted
exclusively by a judge. It also seeks comment on the results of a recent
Federal Judicial Center study that showed very little difference in the
total time expended on voir dire in courts where it is conducted by the
judge, by the attorneys, or by both.
(B) Rule 9(h) (Pleading Special Matters) would be amended to resolve the
ambiguity that arises for interlocutory appeals in cases that involve both
admiralty and nonadmiralty claims by clarifying that "a case that includes
an admiralty or maritime claim within this subdivision is an admiralty
case within 28 U.S.C. 1292(a)(3)."
(C) The proposed amendments to Rule 26(c) (Protective Orders) were
originally published for comment in October 1993, but were later revised
in light of comment. Subdivision (1) would be amended to confirm the
common practice of entering a protective order on stipulation of the
parties. New subdivision (3) would dispel any doubt whether the power to
enter a protective order includes the power to modify or vacate a
protective order. The proposed amendments recognize that a motion to
modify or dissolve a protective order may be made by a party, a person
bound by the order, or a person allowed to intervene for this purpose.
The committee noted that the proposed amendments generated some confusion
regarding their scope, particularly with regard to sealing orders. In
light of this concern, the Committee Note to the proposal was revised to
state explicitly that the proposal deals only with discovery orders and
does not affect other court orders that seal records or authorize or deny
access to records.
(D) Rule 48 (Number of Jurors - Participation in Verdict) would be amended
to require the initial empaneling of a jury of twelve persons in all civil
cases, in the absence of stipulation by counsel to a lower number. The
jury may be reduced to fewer members if some are excused under Rule 47(c).
A jury may be reduced to fewer than six members, however, only if the
parties stipulate to a lower number before the verdict is returned. The
proposed amendments would not alter the requirement of unanimity, nor
provide for alternate jurors.
The proposed changes are supported in part by the belief that requiring
twelve-member juries would positively affect the representative quality of
juries, including increasing minority representation, and in part by more
general advantages of twelve-member juries.
II. Proposed Amendments to the Federal Rules of Criminal Procedure
The proposed amendments to Rule 24 (Trial Jurors) would provide that the
parties are entitled to participate in the oral questioning of prospective
jurors to supplement the court's examination under reasonable limits on
time, manner, and subject matter determined by the trial court in its
discretion. The reasons for the proposed amendments are similar to the
reasons given for identical changes to Civil Rule 47. (See Section I.A.)
In particular, the advisory committee believed that voir dire is better
and is perceived to be fairer when attorneys participate.
III. Proposed Amendments to the Federal Rules of Appellate Procedure
(A) Rule 26.1 (Corporate Disclosure Statement) would be amended to
simplify the disclosures that must be made by a corporate party by
deleting the requirement that the party identify subsidiaries and
affiliates that have issued shares to the public. The rule would continue
to require disclosure of a parent corporation and would be amended to
require disclosure of any stockholders that are publicly held companies
owning 10% or more of the party's stock.
(B) Rule 29 (Brief of an Amicus Curiae) would be rewritten. The proposed
amendments would require that the amicus brief be filed with a motion
requesting permission to file the brief. The motion must also state the
relevance of the matters asserted by the amicus to the disposition of the
case. The proposal limits an amicus brief to one-half the length of a
party's principal brief and clarifies the items that must be included in
(C) "In banc" would be changed to "en banc" in Rule 35 (En Banc
Proceedings), because of its much wider usage among the courts. The
proposed amendments to Rule 35 would also require that each petition for a
rehearing en banc demonstrate that it meets the criteria set for en banc
consideration. Intercircuit conflict is given as a reason for determining
that the proceeding is of exceptional importance - one of the criteria for
granting an en banc hearing. As amended, a request for rehearing en banc
would suspend the finality of the judgment and extend the period for
filing a petition for certiorari.
(D) Rule 41 (Mandate) would be amended as a companion to the proposed
amendments to Rule 35 and would delay the issuance of the mandate upon
filing of a petition for rehearing en banc or a motion for a stay of
mandate. The proposed amendments also provide that a mandate is effective
IV. Proposed Amendments to the Federal Rules of Bankruptcy Procedure
Many of the proposed amendments are necessary to conform the rules to the
Bankruptcy Reform Act of 1994 (the Act).
(A) Rule 1019(3) and (5) (Conversion of a Case to Chapter 7) are amended
to make stylistic improvements and to delete such phrases as "superseded
case" and "original petition" because they give the erroneous impression
that conversion of a case to a different chapter of the Bankruptcy Code
results in a new case or a new petition for relief.
(B) Rule 1020 (Election to be Considered a Small Business) would be added
to provide procedures and time limits for a small business to elect to be
considered a small business in a chapter 11 case under 1121(e) and
1125(f) of the Code as amended by the Act.
(C) Rule 2002 (Notice to Creditors) would be amended to provide for notice
of a meeting called for the purpose of electing a chapter 11 trustee under
1104(b) of the Code as amended by the Act. Subdivision (n) would be
amended consistent with the 1994 amendments to 342(c) of the Code, to
provide for the inclusion of certain information in the caption of every
notice required to be given by a debtor to a creditor.
(D) Rule 2007.1 (Appointment of Trustee or Examiner in a Chapter 11
Reorganization Case) would be amended to provide procedures for the
election of a chapter 11 trustee under 1104(b) of the Code as amended by
(E) Rule 3014 (Election Pursuant to 1111) would be amended to provide a
time limit for secured creditors to make an election under 1111(b)(2) of
the Code in a small business chapter 11 case.
(F) Rule 3017 (Court Consideration of Disclosure Statements) would be
amended to give the court flexibility in fixing the record date for the
purpose of determining the holders of securities who are entitled to
receive a disclosure statement, ballot, and other materials in connection
with the solicitation of votes on a chapter 11 plan.
(G) Rule 3017.1 (Court Consideration of Disclosure Statement in a Small
Business Case) would be added to provide procedures, consistent with the
Act, for the conditional and final approval of a disclosure statement in a
small business chapter 11 case.
(H) Rule 3018 (Acceptance or Rejection of a Plan) would be amended to give
the court flexibility in fixing the record date for the purpose of
determining the holders of securities who may vote on a plan.
(I) Rule 3021 (Distribution Under Plan) would be amended to provide
flexibility in fixing the record date for the purpose of determining the
holders of securities who are entitled to receive distributions under a
confirmed plan, to treat the holders of debt securities the same as other
creditors by requiring that their claims be allowed in order to receive
distribution, and to clarify that all interest holders whose interests
have not been disallowed may receive a distribution under a confirmed
(J) Rule 8001 (Manner of Taking Appeal) would be amended to conform to the
Act that amended 28 U.S.C. 158 to permit an appeal as of right from an
order extending or reducing the exclusivity period for filing a chapter 11
plan under 1121. Subdivision (e) would be amended to provide a procedure
for electing to have an appeal heard by the district court rather than by
a bankruptcy appellate panel, under 28 U.S.C. 158(c)(1), as amended by
(K) Rule 8002(c) (Time for Filing Notice of Appeal) would be amended to
provide that a request for an extension of time to appeal must be "filed"
within the applicable time period; to give the court discretion - more
than 20 days after the expiration of the time to file a notice of appeal -
to order that a party may file a notice of appeal if the motion for an
extension was timely and the notice of appeal is filed not later than ten
days after the entry of the order extending the time; and to prohibit any
extension of time to file a notice of appeal if the appeal is from certain
types of orders.
(L) Rule 8020 (Damages and Costs for Frivolous Appeal) would be added to
clarify that a district court or a bankruptcy appellate panel hearing an
appeal may award damages and costs for a frivolous appeal.
(M) Rule 9011 (Signing and Verification of Papers) would be amended to
conform to the 1993 amendments to Civil Rule 11, except that the safe
harbor provision, which prohibits the filing of a motion for sanctions
unless the challenged paper is not withdrawn or corrected within a
prescribed time after service of the motion, does not apply if the
challenged paper is a bankruptcy petition.
(N) Rule 9015 (Jury Trials) would be added to provide procedures relating
to jury trials in bankruptcy cases and proceedings, including procedures
for consenting to have a jury trial conducted by a bankruptcy judge under
28 U.S.C. 157(e) that was added by the Act.
(O) Rule 9035 (Applicability of Rules in Alabama and North Carolina) would
be amended to clarify that the Bankruptcy Rules do not apply to the extent
that they are inconsistent with any federal statutory provision relating
to bankruptcy administrators in the districts of North Carolina and
V. Proposed Amendments to the Federal Rules of Evidence
(A) Rule 103 (Rulings on Evidence) would be amended to clarify the
different practices among the courts regarding the finality of rulings on
pretrial motions concerning the admissibility of evidence. The proposed
amendments explicitly establish a default rule requiring counsel to renew
at trial any pretrial objection or proffer that was earlier denied to
preserve the objection for appeal purposes.
(B) Rule 407 (Subsequent Remedial Measures) would be amended to apply the
rule expressly to product liability actions and to clarify that the rule
applies only to changes made after the occurrence that produced the
damages giving rise to the action.
(C) Rule 801 (Definitions) would be amended to address the issues raised
by the Supreme Court in Bourjaily v. United States, 483 U.S. 171 (1987).
It would state expressly that a court may consider the contents of a
coconspirator's statement in determining "the existence of the conspiracy
and the participation therein of the declarant and the party against whom
the statement is offered." The amendment also provides that the content of
the declarant's statement does not alone suffice to establish a conspiracy
in which the declarant and the defendant participated. The amendments also
treat analogously preliminary questions relating to the declarant's
authority and the agency or employment relationship.
(D) The contents of Rule 803(24) (Other Hearsay Exceptions -Availability
of Declarant Immaterial) and Rule 804((b)(5) (Other Hearsay Exceptions -
Declarant Unavailable) would be combined and transferred to new Rule 807
(Residual Exception). No change in meaning is intended.
(E) Rule 804 (Hearsay Exceptions; Declarant Unavailable) would be amended
to provide that a party forfeits the right to object on hearsay grounds to
the admission of a declarant's prior statement when the party's deliberate
wrongdoing or acquiescence therein procured the unavailability of the
declarant as a witness.
(F) The amendment to Rule 806 (Attacking and Supporting Credibility of
Declarant) corrects a miscitation.
(G) New Rule 807 (Other Exceptions) consists of old Rules 803(24) and
VI. Special Request for Comment on Certain Federal Rules of Evidence
The Advisory Committee on Evidence Rules has completed its initial
assessment of all the Evidence Rules. Supplementing its 1994 decisions,
the advisory committee has now reached tentative decisions not to amend
the remaining 24 rules. The committee's philosophy has been that an
amendment to a rule should not be undertaken absent a showing either that
it is not working well in practice or that it embodies a policy decision
believed by the committee to be erroneous. The committee was concerned,
however, that it was not receiving sufficient input from the public and
bar, and it believes that comments on its work would be helpful. It hopes
that this step will cause those who believe that certain rules should be
amended to communicate their concerns to the committee. Accordingly, it
seeks public comment, whether favorable or adverse, on its decision not to
amend the following rules:
Rule 103(a), (b), (c), and (d) (Rulings on Evidence)
Rule 104 (Preliminary Questions)
Rule 408 (Compromise or Offers to Compromise)
Rule 411 (Liability Insurance)
Rule 801(a),(b),(c), and (d)(1) (Definitions)
Rule 802 (Hearsay Rule)
Rule 803(1)-(23)(Hearsay Exceptions; Availability of Declarant Immaterial)
Rule 804(a) and (b)(1-4) (Hearsay Exceptions; Declarant Unavailable)
Rule 805 (Hearsay within Hearsay)
Rule 806 (Attacking and Supporting Credibility of Declarant)
Rule 901 (Requirement of Authentication or Identification)
Rule 902 (Self-Authentication)
Rule 903 (Subscribing Witness' Testimony Unnecessary)
Rule 1001 (Definitions)
Rule 1002 (Requirement of Original)
Rule 1003 (Admissibility of Duplicates)
Rule 1004 (Admissibility of Other Evidence of Contents)
Rule 1005 (Public Records)
Rule 1006 (Summaries)
Rule 1007 (Testimony or Written Admission of Party)
Rule 1008 (Functions of Court and Jury)
Rule 1101 (Applicability of Rules)
Rule 1102 (Amendments)
Rule 1103 (Title)
Amendments to certain subdivisions of Rules 801, 803, and 804 have been
proposed. See V.
Public hearings are scheduled to be held on the amendments to
Appellate Rules in Denver, Colorado on January 22, 1996;
Bankruptcy Rules in Washington, D.C. on February 9, 1996;
Civil and Criminal Rules (Joint Hearings) in Oakland, California on
December 15, 1995, and in New Orleans, Louisiana on February 9, 1996;
Civil Rules in Atlanta, Georgia, on January 26, 1996;
Evidence Rules in New York, New York on January 18, 1996.
In accordance with established procedures all comments submitted on the
proposed amendments are available for public inspection.
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