There have been several recent amendments to the Federal Rules of Appellate Procedure (FRAP), Federal Rules of Evidence (FRE), and Federal Rules of Criminal Procedure that went into effect on December 1, 2019.
These amendments significantly impact federal civil and criminal practice. Notably, the changes discard the proof of service requirements for certain documents filed using case management/electronic case filing (CM/ECF) in federal courts of appeals and also adds to the disclosure requirements in FRAP 26.1 disclosure statements.
The amendments make substantial changes to the requirements for the residual hearsay exception in FRE 807. They also add a new rule to the Federal Rules of Criminal Procedure that requires attorneys to confer and attempt to agree on timing and procedures for disclosure no later than 14 days after the arraignment. The amendments to the rules are discussed below.
Changes to the Federal Rules of Appellate Procedure
Federal Rules of Appellate Procedure FRAP 3(d) (serving notices of appeal) have eliminated the requirement of the district court clerk to serve the notice of appeal in paper form, which is a move recognize the acceptance of electronic service. FRAP 5(a)(1) (petitions for permission to appeal) no longer requires proof of service for petitions served using CM/ECF.
The filing of notices of appeal from the Tax Court, found in FRAP 13(a)(2) now permits an appellant to send a notice of appeal to the Tax Court clerk via other service that U.S. mail.
FRAP 21, the appellate rule pertaining to extraordinary writs, has been modified to eliminate the proof of service requirement for writs served using CM/ECF. And the proof of service requirement for documents served using CM/ECF has been eliminated from FRAP 25(d).
The rule concerning the computing and extending time, FRAP 26(c) provides greater clarification as to when a party may add three days to the response time calculated from the date of service. That rule also was amended to reflect the changes to FRAP 25(d).
There were several changes to FRAP 26.1 concerning disclosure statements. In fact, the term “corporate disclosure statement” was simplified to just “disclosure statement.” This change of language was also made in Rule 28(a) and 32(f). The amendments extend the disclosure requirements to nongovernmental corporations that seek to intervene on appeal in FRAP 26.1(a).
In criminal cases, the rue requires the government to (i) identify any organizational victim of the alleged criminal activity, except on a showing of good cause; and (ii) give additional information if the organizational victim is a corporation in FRAP 26.1(b). In bankruptcy cases, certain parties must (i) disclose the names of all debtors; and (ii) give additional information for each debtor that is a corporation in FRAP 26.1(c). And in FRAP 26.1(d) and (e), the amendments add clarification to the manner by which parties must serve and file disclosure statements.
Finally, the appellate rule amendments eliminated the proof of service requirement for bills of costs served using CM/ECF in FRAP 39.
Changes to Federal Rule of Evidence 807
The Federal Rules of Evidence saw changes to the residual hearsay exception in FRE 807(a). Rule 807 was amended to rectify several issues that the courts have experienced in applying it. The Committee Notes explain that “[c]ourts have had difficulty with the requirement that the proffered hearsay carry “equivalent” circumstantial guarantees of trustworthiness.”
They note that the “equivalence” standard hasn’t be a helpful guide a court’s discretion to admit hearsay—the court is free to choose among a spectrum of exceptions for comparison. Thus, the changes get rid of the requirement that a proffered hearsay statement carry equivalent circumstantial guarantees of trustworthiness; be evidence of a material fact; and serve the purposes of the rules and the interests of justice. The Committee advises that now the court “should proceed directly to a determination of whether the hearsay is supported by guarantees of trustworthiness.” Further, the amendment specifically requires the court to look at corroborating evidence in the trustworthiness enquiry.
The amendment also requires the proponent to disclose the “substance” of the statement. Which is intended to require a description that is sufficiently specific under the circumstances to provide the opponent with a fair opportunity to meet the evidence. And the requirement that the proponent disclose the declarant’s address in FRE 807(b) was also eliminated.
A New Federal Rule of Criminal Procedure
Finally, Federal Rule of Criminal Procedure 16.1 was added. The Committee explains that “[t]his new rule requires the attorney for the government and counsel for the defendant to confer early in the process, no later than 14 days after arraignment, about the timetable and procedures for pretrial disclosure. The new requirement is particularly important in cases involving electronically stored information (ESI) or other voluminous or complex discovery.” Subsection (b) states that “[a]fter the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.”
