The Federal Rules of Civil Procedure Get a Facelift
By Jess R. Nix
Jess R. Nix is an associate with Bradley Arant Rose & White, LLP, in Birmingham, Alabama. He can be contacted at firstname.lastname@example.org.
Effective December 1, 2007, the Federal Rules of Civil Procedure underwent a facelift to help bring them into the modern era. Every rule was amended in at least some way, and one new rule was added. These changes were designed to make the rules more user-friendly and to remove outdated references and language. With a few minor exceptions, these changes are meant to have no substantive impact. The Official Comments state that the 2007 amendments are part of the “general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules.”
The only new rule is Rule 5.2, which addresses privacy concerns in court filings. The rule was added in compliance with Section 205(c)(3) of the E-Government Act of 2002, which requires the U.S. Supreme Court to prescribe rules “to protect privacy and security concerns relating to electronic filing of documents and the public availability . . . of documents filed electronically.” With limited exceptions, the Rule requires redaction when social security numbers, birth dates, minors’ initials, and financial account numbers are part of a court filing. The Rule also addresses sealed filings and provides for limits on public access to certain filings in social security and immigration cases. Notably, subdivision (h) of the rule provides that these protections may be waived if a person files her own information without redaction and not under seal.
Eleven of the Rules underwent minor substantive amendments, which the chair of the Rules Committee calls “style-substance” amendments. For instance, Rules 11 and 26 now require attorneys to provide their e-mail addresses in addition to their mailing addresses and phone numbers on pleadings. Rule 31 now requires that a party who notices a deposition by written questions to notify all other parties when the deposition is completed. The other eight substantively amended rules are Rules 4(k), 9(h), 14(b) 16(c), 30(b), 40, 71.1(d), and 78(a). The revisions are not intended to significantly change practice, but one should carefully review these revisions to ensure full compliance with the rules.
The most comprehensive changes to the rules are the “stylistic” edits throughout. Many of the more complex rules were simplified and broken into new subparts. Lists that were part of a running sentence are now vertically separated. For quicker referencing, hanging indents are used throughout to show the different parts of each rule. As a result of these changes, some rules have also been renumbered internally.
Another stylistic change is the deletion of certain references that have become dated or unnecessary since the rules were enacted seventy years ago. For instance, the Rule 1 reference to the merging of law, equity, and admiralty was deleted because that principle is now so firmly established. Inconsistent uses of terms “that say the same thing in different ways” were also eliminated. For example, while the former version of the rules interchangeably used the terms “infant” and “minor,” the revised rules uniformly refer to “minors.”
The Rules Committee has made clear that these stylistic changes are not intended to have a substantive impact. According to its chair, the Rules Committee has “taken extraordinary steps to minimize the likelihood of inadvertent changes in substantive meaning.” He has also noted that the rules of criminal and appellate procedure have been similarly restyled without significant problems. Nevertheless, it is difficult to change any rules, especially rules governing lawyers, without some substantive effect. Whether the Rules Committee has succeeded in updating the rules without effecting substantive change remains to be seen.
So far, the reaction to the new rules seems to be positive. In the view of Professor Carol Rice Andrews, who teaches civil procedure at the University of Alabama School of Law, the amendments to the rules are a “net plus” because they make the rules easier to understand. Nevertheless, she does have some advice for lawyers in light of the new rules. She points out that some of the changes, most notably the internal renumbering of some of the rules, may “bedevil some lawyers,” so lawyers should “closely cross-check references to specific rule paragraphs” when citing federal cases that were decided under the old rules. Professor Andrews also notes that state rules of civil procedure may not mirror these new changes, so it is important to be cautious when “making state-to-federal comparisons” between rules. And, of course, the most important piece of advice is—if you have not done so already—get a new rule book!