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January 22, 2010 civil procedure

Technical Amendments to Rules in 2009 Presage Further Changes in 2010

By Charles S. Fax

Days are days. Who knew? In the realm of filing deadlines occupied by every federal civil litigator, days were not necessarily “days” until December 1, 2009. That is, under Rule 6, days falling on weekends “when the filing period is less than 11 days” were not counted toward the deadline.

Comprehensive amendments to the Federal Rules of Civil Procedure, effective December 1, 2009, dispense with that fiction, however, and in the new Rule 6, embrace the sensible notion that days are days. Going forward, all days are to be counted toward the deadline – but that is just the tip of the iceberg.

Virtually all short deadlines have been extended; most filing periods of less than 30 days have been re-set to multiples of 7 days; and other adjustments have been made, including establishment of a midnight deadline for electronic filing (absent a specific rule to the contrary).

Revisions of time-computation rules and rules containing time periods have affected 91 rules. For the foreseeable future, when a filing is made or received, one should check the pertinent rules carefully to become familiar with the new time limits.

Several other amendments effective December 1, 2009, are noteworthy. Chief among them is the “indicative” ruling provision in new Rule 62.1 (to be read together with new Appellate Rule 12.1).

Assume that after an appeal has been noted, a motion is made below on a matter that the trial court is better suited to adjudicate than the appellate court, for example, a Rule 60(b)(1) motion for relief from a final judgment based on mistake. The trial court cannot rule, however, as jurisdiction vests with the appellate tribunal. Under the new rule, the district court may defer ruling, deny the motion, or indicate that it would be inclined to grant the motion if the case were remanded or that the motion raises a substantial issue. If the district court makes either indicative statement, the party must notify the court of appeals, enabling the two courts to cooperate in determining whether to decide the appeal before or after the motion.

Rule 15(a) has also been amended. Previously, a party could amend its pleading once as of right at any time before being served with a responsive pleading (or within 20 days of filing the pleading if no responsive pleading were allowed and the case was not on the trial calendar). Thus, the filing of an answer would terminate the plaintiff’s right to amend its complaint, but a motion to dismiss would not, and the plaintiff could trump the motion with an amended complaint at any time up to the motion’s disposition.

Under the new rule, a party can file an amended pleading without leave of court within 21 days after service of the responsive pleading, or within 21 days after service of a motion under Rule 12 (b), (e) or (f), whichever is earlier. This provision promotes judicial efficiency by requiring the pleader to consider quickly the efficacy of amending the pleading to address the motion.

Finally, amended Rule 48 adds a provision similar to Criminal Rule 31 that allows a court on its own to poll the jury and requires polling at a party’s request.

These amendments are but a prelude, however, to substantive changes in Rules 26 and 56 on track for adoption on December 1, 2010. Four changes are proposed for Rule 26.

First, parties must disclose the topic on which an expert who is not subject to the formal report requirement will testify, plus a summary of the facts and opinions to be offered. Second, the “data or other information” considered by an expert, rather than the “facts or data” considered, must be disclosed. Third and fourth, work-product protection is extended to draft expert reports and expert-attorney communications (with three exceptions).

The proposed change to Rule 56 has been curtailed from the original “point/counterpoint” requirement, but remains important nonetheless. Initially, not only was a movant required to support its motion with specific facts not in contention, the respondent was required to address each with specificity. Likewise, contentions of material facts in dispute necessitated a specific refutation with record support.

The modified proposal simply requires that the proponent of a material fact not at issue or at issue cite to the record that supports the assertion. The facts must be of evidentiary quality. Supporting affidavits must be competent and based on personal knowledge.

Further changes are anticipated in the next several years, as the drafters drill down on the complexity and expense of electronic discovery. Stay tuned.


Charles S. Fax is an associate editor for Litigation News.

Copyright © 2010, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).