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ADVISORY COMMITTEEONCIVIL RULESAustin, TXApril 25–26, 2017
TABLE OF CONTENTSAGENDA & INTRODUCTORY MEMORANDUM . 7TAB 1TAB 2OPENING BUSINESSA.Information Item: Draft Minutes of the January 3, 2017 Meeting ofthe Committee on Rules of Practice and Procedure . 23B.Information Item: March 2017 Report of the Committee on Rules ofPractice and Procedure to the Judicial Conference of the UnitedStates . 51ACTION ITEM: APPROVAL OF MINUTESDraft Minutes of the November 3, 2016 Meeting of the Advisory Committeeon Civil Rules . 71TAB 3INFORMATION ITEM: LEGISLATION . 95TAB 4ACTION ITEM: RULE 23A.Subcommittee Report . 103 B.TAB 5Text of Proposed Rule 23oRedline . 105oClean . 117Supporting Materials Summary of Comments and Testimony . 131 Notes of March 1, 2017 Conference Call . 193ACTION ITEM: RULE 5 Reporter’s Memorandum . 205ooText of Proposed Rule 5 Redline . 209 Clean . 214Summary of Comments and Testimony . 216Advisory Committee on Civil Rules April 25–26, 2017Page 3 of 512
TAB 6TAB 7ACTION ITEM: RULES 62 & 65.1 Reporter’s Memorandum . 223 Redline of Proposed Rule 62 and Committee Note . 224 Text of Proposed Rule 65.1oRedline (as Published) . 230oRedline (with Style Changes) . 230oCommittee Note . 231 Rule 62: Summary of Comments . 232 Rule 65.1: Summary of Comments . 233INFORMATION ITEM: RULE 30(b)(6)A.Subcommittee Report . 239B.Supporting Materials Memorandum to the Rule 30(b)(6) Subcommittee fromLauren Gailey, Rules Law Clerk, Regarding Rule 30(b)(6)Research (March 30, 2017) . 249 Notes of February 13, 2017 Conference Call . 267 Suggestion 16-CV-K (Lawyers for Civil Justice) . 275 Suggestion 17-CV-I (National Employment LawyersAssociation) . 287 Excerpt from the Agenda Book for the November 2016Meeting of the Advisory Committee on Civil Rules . 293TAB 8INFORMATION ITEM: PILOT PROJECTS . 319TAB 9INFORMATION ITEM: SOCIAL SECURITY REVIEW CASESA.Reporter’s Memorandum . 325B.Supporting Materials Suggestion 17-CV-D (Administrative Conference of theUnited States) . 333 42 U.S.C. § 405(g) . 345Advisory Committee on Civil Rules April 25–26, 2017Page 4 of 512
TAB 10ACTION ITEM: ORDERING THE FUTURE AGENDA . 349A.Jury Trial Demand: Rules 38, 39, and 81(c)(3)(A) . 353 B.Rule 47: Party or Lawyer Participation in Voir Dire . 371 Suggestion 17-CV-C (American Bar Association) . 377 Suggestion 17-CV-F (American Board of Trial Advocates) . 381 Suggestion 17-CV-G (American Association for Justice). 383C.Rule 45: Subpoena Service Alternatives . 387D.Rule 68: Offers of Judgment . 397 TAB 11Suggestion 17-CV-A (Hon. Jesse M. Furman) . 403INFORMATION ITEM: OTHER DOCKET MATTERSA.Pre-Motion Conferences. 409 B.C.Suggestion 16-CV-G (Suresh Kalkunte) . 449“Nationwide Injunctions” . 453 G.Suggestion 16-CV-J (Thomas Moers Mayer) . 437Disclaimer of Fear or Intimidation . 447 F.Suggestion 16-CV-H (John Vail) . 431Title VI of the Puerto Rico Oversight, Management, and EconomicStability Act . 435 E.Suggestion 17-CV-B (Alliance for Quality Improvement andPatient Safety) . 419Letter of Supplemental Authorities. 429 D.Suggestion 17-CV-A (Hon. Jesse M. Furman) . 413Rule 45 and the Patient Safety and Quality Improvement Act of 2005 . 417 APPENDIXSuggestion 16-CV-F (Hon. Neil M. Gorsuch andHon. Susan P. Graber) . 367Suggestion 17-CV-E (Prof. Samuel L. Bray) . 459Rule 7.1: Supplemental Disclosure Statements . 463RULE 68 IN COMMITTEE HISTORY . 467Advisory Committee on Civil Rules April 25–26, 2017Page 5 of 512
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AGENDAMeeting of the Advisory Committee on Civil RulesApril 25-26, 20171.Opening Businessa. Report on the January 2017 Meeting of the Committeeon Rules of Practice and Procedureb.Report on the March MeetingConference of the United StatesoftheJudicial2.ACTION ITEM: Approve Minutes of the November 2016meeting of the Advisory Committee on Civil Rules3.Information Item: LegislationA. Class-Action LegislationB. Other Legislation4.ACTION ITEM: Rule 23 amendments published August 20165.ACTION ITEM: Rule 5 amendments published August 20166.ACTION ITEM: Rules 62, 65.1 amendments published ion Item: Pilot Recommendation to adopt Rules for Social-SecurityReview cases10.Action Item: Ordering the Future AgendaReportoftheRule 30(b)(6)A. Jury Trial: Rules 38, 39, 81.3B. Rule 47: Party or Lawyer Participation in VoirDireC. Rule 45: Subpoena Service AlternativesD. Rule 68: Offers of JudgmentAdvisory Committee on Civil Rules April 25–26, 2017Page 7 of 512
11.INFORMATION ITEMS: Other Docket MattersA. Pre-Motion Conferences, 17-CV-AB. Rule 45 and the Patient Safety Act, 17-CV-BC. Letter of Supplemental Authorities: 16-CV-HD. Title VI, Puerto Rico Oversight Act, 16-CV-JE. Disclaimer of Fear or Intimidation, 16-CV-GF. "Nationwide Injunctions," 17-CV-EG. Rule 7.1: Supplemental Disclosure StatementsAdvisory Committee on Civil Rules April 25–26, 2017Page 8 of 512
INTRODUCTION12345678Part I of these materials addresses the proposed rulesamendments that were published for comment last August. In order ofpresentation, these are Rules 23 (aspects of class-actionpractice); 5 (e-filing and service); and 62 and 65.1 (stays ofenforcement and security). Each rule can be advanced to theStanding Committee with a recommendation that it be approved foradoption, with modest changes that reflect further work inspired bythe comments.9Part II is the Report of the Rule 30(b)(6) Subcommittee.101112131415Part III introduces a submission by the AdministrativeConference of the United States proposing adoption of "specialprocedural rules for cases under the Social Security Act in whichan individual seeks district court review of a final administrativedecision of the Commissioner of Social Security pursuant to 42U.S.C. § 405(g)."1617181920Part IV reviews four projects that carry over on the agendafrom earlier discussions. The purpose of present discussion is toestablish an order of priorities: which of these projects deservefurther development, and which should be developed first? Any oneof them will, when pursued, demand serious work.2122The proposal to expand the means of serving a Rule 45 subpoenais likely to be the least burdensome.23242526272829303132Repeated past experience, on the other hand, shows that theoffer-of-judgment provisions of Rule 68 will demand a great deal ofeffort for several reasons — current Supreme Court interpretationsthat rest on the rule language may be undesirable as a matter ofpolicy; taking up the frequent suggestions that claimants should beauthorized to make Rule 68 offers leads to contentious issues ofsanctions, attorney-fee awards, and multiple complexities thatlikely should be addressed in rule text rather than pushed over tothe courts for uncertain outcomes; and strong arguments that Rule68 itself is misguided and should be abrogated.33343536373839The proposal to eliminate the Rule 38 provision waiving theright to jury trial absent an early demand, or at least to extendthe time to make a demand, can be drafted readily enough. But itconfronts two difficult questions: How often does a party forfeitthe right to jury trial because of ignorance or oversight? And isthere a real value in determining early in the action whether thecase is to be tried to a jury?404142434445The proposal to enhance the opportunities of lawyers toparticipate in voir dire examination of prospective jurors issimilar to a Rule 47 proposal that was advanced vigorously by theCommittee twenty years ago. The voluminous comments on thepublished proposal were clearly divided: most lawyers welcomed theproposal, and most judges — including many who permit active lawyerAdvisory Committee on Civil Rules April 25–26, 2017Page 9 of 512
46involvement — were strongly opposed.4748495051Part V presents several additional items that have been addedto the agenda. Although described as information items, it will beappropriate to determine which should be retained on the agenda forfurther study and which can properly be removed from the agendanow.Advisory Committee on Civil Rules April 25–26, 2017Page 10 of 512
ADVISORY COMMITTEE ON CIVIL RULESChair, Advisory Committee on Civil RulesHonorable John D. BatesUnited States District CourtE. Barrett Prettyman United States Courthouse333 Constitution Avenue, N.W., Room 4114Washington, DC 20001Reporter, Advisory Committee on Civil RulesProfessor Edward H. CooperUniversity of Michigan Law School312 Hutchins HallAnn Arbor, MI 48109-1215Associate Reporter, Advisory Committeeon Civil RulesProfessor Richard L. MarcusUniversity of CaliforniaHastings College of the Law200 McAllister StreetSan Francisco, CA 94102-4978Members, Advisory Committee on Civil RulesJohn M. Barkett, Esq.Shook, Hardy & Bacon L.L.P.3200 Miami Center201 S. Biscayne Blvd.Miami, Florida 33131Elizabeth Cabraser, Esq.Lieff, Cabraser, Heimann & Bernstein, LLPEmbarcadero Center West275 Battery Street - Suite 3000San Francisco, CA 94111-3339Honorable Robert Michael Dow, Jr.United States District CourtEverett McKinley Dirksen U.S. Courthouse219 South Dearborn Street, Room 1978Chicago, IL 60604Honorable Joan N. EricksenUnited States District CourtUnited States Courthouse300 South Fourth Street, Room 12WMinneapolis, MN 55415Parker C. Folse, Esq.Susman Godfrey LLP1201 Third Avenue, Suite 3800Seattle, WA 98101Effective: October 1, 2016Advisory Committee on Civil RulesRevised: March 1, 2017Advisory Committee on Civil Rules April 25–26, 2017Page 1Page 11 of 512
Members, Advisory Committee on Civil Rules(cont’d)Dean Robert H. KlonoffDean & Professor of LawLewis & Clark Law School10015 S.W. Terwilliger Blvd.Portland, OR 97219-7799Honorable Sara LioiUnited States District CourtJohn F. Seiberling Federal Building andUnited States CourthouseTwo South Main Street, Room 526Akron, OH 44308Honorable Scott M. Matheson, Jr.United States Court of AppealsWallace F. Bennett Federal Building125 South State Street, Room 5402Salt Lake City, UT 84138Honorable Brian MorrisUnited States District CourtMissouri River Courthouse125 Central Avenue West, Suite 301Great Falls, MT 59404Honorable David E. NahmiasSupreme Court of GeorgiaRoom 512, State Judicial BuildingAtlanta, GA 30334Honorable Solomon Oliver, Jr.United States District CourtCarl B. Stokes United States Courthouse801 West Superior Avenue, Room 19ACleveland, OH 44113Honorable Chad A. ReadlerActing Assistant Attorney General (ex officio)United States Department of Justice, CivilDivision950 Pennsylvania Ave., N.W., Suite 3601Washington, DC 20530Virginia A. Seitz, Esq.Sidley Austin LLP1501 K Street, N.W.Washington DC 20005Effective: October 1, 2016Advisory Committee on Civil RulesRevised: March 1, 2017Advisory Committee on Civil Rules April 25–26, 2017Page 2Page 12 of 512
Members, Advisory Committee on Civil Rules(cont’d)Honorable Craig B. ShafferUnited States District CourtAlfred A. Arraj United States Courthouse901 19th Street, 4th FloorDenver, CO 80294Liaison Members, Advisory Committeeon Civil RulesHonorable A. Benjamin Goldgar (Bankruptcy)United States Bankruptcy CourtEverett McKinley DirksenUnited States Courthouse219 South Dearborn Street, Room 638Chicago, IL 60604Peter D. Keisler, Esq.Sidley Austin, LLP1501 K Street, N.W.Washington DC 20005(Standing)Clerk of Court Representative,Advisory Committee on Civil RulesLaura A. BriggsClerk of CourtUnited States District Court105 Birch Bayh Federal Building and U.S.Courthouse46 East Ohio StreetIndianapolis, IN 46204Secretary, Standing Committeeand Rules Committee OfficerRebecca A. WomeldorfSecretary, Committee on Rules of Practice &Procedure and Rules Committee OfficerThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-1820Fax202-502-1755Rebecca Womeldorf@ao.uscourts.govEffective: October 1, 2016Advisory Committee on Civil RulesRevised: March 1, 2017Advisory Committee on Civil Rules April 25–26, 2017Page 3Page 13 of 512
Advisory Committee on Civil RulesMembersPositionDistrict/CircuitStart DateEnd DateJohn D. BatesChairD DCWashington, DCMember:Chair:2015---2018John M. BarkettESQFlorida20122017Elizabeth J. CabraserESQCalifornia20102017Robert Michael Dow, Jr.DIllinois (Northern)20132019Joan N. EricksenDMinnesota20152018Parker C. FolseESQWashington20122018A. Benjamin Goldgar**BIllinois (Northern)2017Peter D. Keisler***ESQWashington, DC2019Robert KlonoffACADOregon20112017Sara E. LioiDOhio (Northern)20162019Scott M. Matheson, Jr.CTenth Circuit20122018Brian MorrisDMontana20152018David E. NahmiasJUSTGeorgia20122018Solomon Oliver, Jr.DOhio (Northern)20112017Chad A. Readler*DOJDistrict of ColumbiaVirginia A. SeitzESQDistrict of Columbia20142017Craig B. ShafferMColorado20142017Edward H. CooperReporterACADMichigan1992OpenRichard MarcusAssociate ReporterACADCalifornia1996OpenPrincipal Staff: Rebecca Womeldorf 202-502-1820* Ex-officio - Acting Assistant Attorney General, Civil Division** Ex-officio - Liaison from Bankruptcy Rules***Ex-officio - Liaison from Standing RulesAdvisory Committee on Civil Rules April 25–26, 2017Page 14 of 512
LIAISON MEMBERSLiaisons for the Advisory Committeeon Appellate RulesGregory G. Garre, Esq.(Standing)Judge Pamela Pepper(Bankruptcy)Liaison for the Advisory Committeeon Bankruptcy RulesJudge Susan P. Graber(Standing)Liaisons for the Advisory Committeeon Civil RulesJudge A. Benjamin Goldgar(Bankruptcy)Peter D. Keisler, Esq.(Standing)Liaison for the Advisory Committeeon Criminal RulesJudge Amy J. St. Eve(Standing)Liaisons for the Advisory Committeeon Evidence RulesJudge James C. Dever III(Criminal)Judge Solomon Oliver, Jr.(Civil)Judge Richard C. Wesley(Standing)Effective: October 1, 2016Liaison MembersRevised: October 1, 2016Advisory Committee on Civil Rules April 25–26, 2017Page 1Page 15 of 512
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTSRebecca A. WomeldorfSecretary, Committee on Rules of Practice &Procedure and Rules Committee OfficerThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-1820Fax202-502-1755Rebecca Womeldorf@ao.uscourts.govJulie WilsonAttorney AdvisorThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-3678Fax202-502-1755Julie Wilson@ao.uscourts.govScott MyersAttorney Advisor (Bankruptcy)Thurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-1913Fax202-502-1755Scott Myers@ao.uscourts.govBridget M. HealyAttorney AdvisorThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 4-240Washington, DC 20544Phone 202-502-1313Fax202-502-1755Bridget Healy@ao.uscourts.govShelly CoxAdministrative SpecialistThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-4487Fax202-502-1755Shelly Cox@ao.uscourts.govFrances F. SkillmanParalegal SpecialistThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E., Room 7-240Washington, DC 20544Phone 202-502-3945Fax202-502-1755Frances Skillman@ao.uscourts.govEffective: October 1, 2016Administrative Office of the U.S. CourtsRevised: October 1, 2016Advisory Committee on Civil Rules April 25–26, 2017Page 1Page 16 of 512
FEDERAL JUDICIAL CENTERTim Reagan(Rules of Practice & Procedure)Senior Research AssociateFederal Judicial CenterThurgood Marshall FederalJudiciary BuildingOne Columbus Circle, N.E., Room 6-436Washington, DC 20002Phone 202-502-4097Fax202-502-4199Marie Leary(Appellate Rules Committee)Research AssociateResearch DivisionThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E.Washington, DC 20002-8003Phone 202-502-4069Fax202-502-4199mleary@fjc.govMolly T. Johnson(Bankruptcy Rules Committee)Senior Research AssociateResearch DivisionThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E.Washington, DC 20002-8003Phone 315-824-4945mjohnson@fjc.govEmery G. Lee(Civil Rules Committee)Senior Research AssociateResearch DivisionThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E.Washington, DC 20002-8003Phone 202-502-4078Fax202-502-4199elee@fjc.govLaural L. Hooper(Criminal Rules Committee)Senior Research AssociateResearch DivisionThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E.Washington, DC 20002-8003Phone 202-502-4093Fax202-502-4199lhooper@fjc.govTimothy T. Lau(Evidence Rules Committee)Research AssociateResearch DivisionThurgood Marshall Federal Judiciary BuildingOne Columbus Circle, N.E.Washington, DC 20002-8003Phone 202-502-4089Fax202-502-4199tlau@fjc.govEffective: October 1, 2016Federal Judicial CenterRevised: October 1, 2016Advisory Committee on Civil Rules April 25–26, 2017Page 1Page 17 of 512
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MINUTESCOMMITTEE ON RULES OF PRACTICE AND PROCEDUREMeeting of January 3, 2017 Phoenix, ArizonaTABLE OF CONTENTSAttendance . 1Opening Business . 2Approval of the Minutes of the Previous Meeting . 3Inter-Committee Work . 4Report of the Advisory Committee on Civil Rules . 7Report of the Advisory Committee on Appellate Rules . 13Report of the Advisory Committee on Bankruptcy Rules . 17Report of the Advisory Committee on Evidence Rules. 21Report of the Advisory Committee on Criminal Rules . 23Report of the Administrative Office . 25Concluding Remarks . 26ATTENDANCEThe Judicial Conference Committee on Rules of Practice and Procedure (the “StandingCommittee”) held its spring meeting at the Sandra Day O’Connor United States Courthouse inPhoenix, Arizona, on January 3, 2017. The following members participated in the meeting:Judge David G. Campbell, ChairJudge Jesse M. FurmanGregory G. Garre, Esq.Daniel C. Girard, Esq.Judge Susan P. GraberJudge Frank Mays HullPeter D. Keisler, Esq.Professor William K. KelleyJudge Amy St. EveProfessor Larry D. ThompsonJudge Richard C. Wesley (by telephone)Chief Justice Robert P. YoungJudge Jack ZouharyThe following attended on behalf of the advisory committees:Advisory Committee on Appellate Rules –Judge Neil M. Gorsuch, ChairProfessor Gregory E. Maggs, ReporterAdvisory Committee on Bankruptcy Rules –Judge Sandra Segal Ikuta, ChairProfessor S. Elizabeth Gibson, ReporterProfessor Michelle M. Harner,Associate ReporterAdvisory Committee on Criminal Rules –Judge Donald W. Molloy, ChairProfessor Sara Sun Beale, Reporter(by telephone)Professor Nancy J. King, Associate Reporter(by telephone)Advisory Committee on Evidence Rules –Judge William K. Sessions III, ChairProfessor Daniel J. Capra, ReporterAdvisory Committee on Civil Rules –Judge John D. Bates, ChairProfessor Edward H. Cooper, ReporterProfessor Richard L. Marcus,Associate ReporterAdvisory Committee on Civil Rules April 25–26, 2017Page 23 of 512
JANUARY 2017 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE – DRAFT MINUTESPage 2Elizabeth J. Shapiro, Deputy Director of the Department of Justice’s Civil Division, representedthe Department on behalf of the Honorable Sally Q. Yates, Deputy Attorney General.Other meeting attendees included: Judge Paul W. Grimm, former member of the AdvisoryCommittee on Civil Rules and Chair of the Pilot Projects Working Group; Judge Robert Dow,Jr., Chair of the Rule 23 Subcommittee, Advisory Committee on Civil Rules; Zachary Porianda,Attorney Advisor to the Court Administration and Case Management (CACM) Committee;Professor Bryan A. Garner, Style Consultant; and Professor R. Joseph Kimble, Style Consultant.Providing support to the Standing Committee:Reporter, Standing CommitteeSecretary, Standing CommitteeAttorney Advisor, RCSOAttorney Advisor, RCSOAttorney Advisor, RCSODirector, Federal Judicial Center (FJC)Senior Research Associate, FJCSenior Research Associate, FJCLaw Clerk, Standing CommitteeProfessor Daniel R. CoquilletteRebecca A. WomeldorfJulie WilsonScott MyersBridget Healy (by telephone)Hon. Jeremy D. FogelDr. Emery G. Lee IIIDr. Tim ReaganLauren GaileyOPENING BUSINESSWelcome and Opening RemarksJudge Campbell called the meeting to order. He introduced the Standing Committee’s newmembers, Judge Furman of the Southern District of New York, Judge Hull of the U.S. Court ofAppeals for the Eleventh Circuit, attorney Peter Keisler of Sidley Austin, and Justice Young ofthe Michigan Supreme Court.Judge Campbell discussed the timing and location of meetings. The Standing Committee holds ameeting in June, after the advisory committees’ spring meetings have been concluded, and intime to approve matters to be published in August. The Standing Committee’s winter meeting isheld during the first week of January, after the advisory committees’ fall meetings (which runfrom September through November) and the holidays, but before the reporters’ spring semestersbegin. Although it has been a tradition for the past few years to hold the winter meeting inPhoenix, Judge Campbell welcomed the members to suggest alternative locations.In his previous role as Chair of the Advisory Committee on Civil Rules, Judge Campbell foundthe January meeting to be an invaluable opportunity to share proposals with the StandingCommittee and solicit feedback from its members. Judge Campbell encouraged all to share theirthoughts.Advisory Committee on Civil Rules April 25–26, 2017Page 24 of 512
JANUARY 2017 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE – DRAFT MINUTESPage 3Report on Rules and Forms Effective December 1, 2016The following Rules and Forms went into effect on December 1, 2016: Appellate Rules 4, 5, 21,25, 26, 27, 28, 28.1, 29, 32, 35, and 40, and Forms 1, 5, 6, new Form 7, and the new Appendix;Bankruptcy Rules 1010, 1011, 2002, 3002.1, 7008, 7012, 7016, 9006, 9027, 9033, new Rule1012, and Official Forms 410S2, 420A, and 420B; Civil Rules 4, 6, and 82; and Criminal Rules4, 41, and 45 (see Agenda Book Tab 1B).Judge Molloy reported that Congress is considering possible legislative action that would undothe recent amendment to Criminal Rule 41. Judge Campbell added that the Department ofJustice (DOJ) had been helpful in advising Congress of the intent behind the rule change.Discussion followed.Report on September 2016 Judicial Conference Session,Proposed Amendments Transmitted to the Supreme Court, andRules and Forms Published for Public CommentRebecca Womeldorf reported on the September 2016 session of the Judicial Conference. In itssemiannual report to the Judicial Conference, the Standing Committee submitted several rulesamendments for final approval and requested approval for publication of a number of otherproposed rule amendments.The Judicial Conference approved the proposed amendments to Bankruptcy Rules 1001,1006(b), and 1015(b), and Evidence Rules 803(16) and 902. These amendments were submittedto the Supreme Court on September 28, 2016. The Court will review the package and, barringany objection, adopt it and transmit it to Congress by May 1, 2017. If Congress takes no action,the amendments will go into effect on December 1, 2017.The Judicial Conference also approved the Mandatory Initial Discovery Pilot Project and theExpedited Procedures Pilot Project.The Standing Committee previously approved for public comment proposed amendments to thefollowing Rules: Appellate Rules 8, 11, 25, 28.1, 29, 31, 39, 41, and Form 4; Bankruptcy Rules3002.1, 3015, 3015.1 (New), 5005, 8002, 8006, 8011, 8013, 8015, 8016, 8017, 8018.1 (New),8022, and 8023, Part VIII Appendix (New), and Official Forms 309F, 417A, 417C, 425A, 425B,425C, and 426; Civil Rules 5, 23, 62, and 65.1; and Criminal Rules 12.4, 45, and 49. These rulesand forms were published for public comment in July and August 2016. Many of these changesare non-controversial. The proposal to amend Civil Rule 23 has generated the most interest atpublic hearings; other hearing testimony has pertained to electronic filing changes affecting allrule sets.APPROVAL OF THE MINUTES OF THE PREVIOUS MEETINGUpon a motion by a member, seconded by another, and by voice vote: The StandingCommittee approved the minutes of the June 6, 2016 meeting.Advisory Committee on Civil Rules April 25–26, 2017Page 25 of 512
JANUARY 2017 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE – DRAFT MINUTESPage 4INTER-COMMITTEE WORKCoordination EffortsScott Myers of the RCSO delivered a report on coordination efforts regarding proposed rulesamendments that affect more than one advisory committee. He described rules amendmentscurrently out for public comment that have implications for more than one set of federal rules.The first example related to electronic filing, service, and signatures (proposed amendments toAppellate Rule 25, Bankruptcy Rule 5005, Civil Rule 5, and Criminal Rule 49). Mr. Myersnoted that the advisory committees coordinated language prior to publication; any changes theadvisory committees recommend when the rules are submitted to the Standing Committee forfinal approval will also go through the coordination process.Mr. Myers explained that proposed amendments to Civil Rules 62 and 65.1 that would eliminatethe term “supersedeas bond” also have inter-committee implications. The Appellate RulesCommittee published proposed amendments to Appellate Rules 8, 11, and 39 that wouldeliminate the term, and that the Bankruptcy Rules Committee planned to do the same byrecommending technical conforming amendments to Bankruptcy Rules 8007, 8010, and 8021.The advisory committees will need to coordinate any additional changes made as a result ofcomments received.Proposed amendments published for comment to the criminal disclosure rule could impact theappellate, bankrup
333 Constitution Avenue, N.W., Room 4114 . Washington, DC 20001 . Reporter, Advisory Committee on Civil Rules Professor Edward H. Cooper University of Michigan Law School
