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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 judges.

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 the brief.

(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 when issued.

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 the Act.

(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 plan.

(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 the Act.

(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 Alabama.

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 804(b)(5).

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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