In June 2005, the Committee on Rules of Practice and Procedure (the committee) reviewed important suggested changes to the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Appellate Procedure that will affect litigants in federal courts.
First, the Advisory Committee on Civil Rules proposed that FRCP 5 be amended to authorize a court to require electronic case filing via local rule. Civil Rule 5(e) currently authorizes a court to adopt local rules that "permit" a party to file papers by electronic means. The original proposal would have made it mandatory for litigants to file papers with the court electronically. However, during the public comment period, the ABA expressed concern that e-filing would cause hardships for litigants who did not have access to personal computers. Based on these concerns, the proposal was amended to authorize a court to require e-filing by local rule only if reasonable exceptions are allowed. The committee has recommended that the amended rule be adopted.
Second, the Appellate Rules Committee proposed a rule (Rule 32.1) allowing the citation in briefs of unpublished opinions, orders or other judicial dispositions designated as "non-precedential." The rule would supersede limitations imposed on such citations by circuit rules. In recommending adoption of the new rule, the committee was persuaded by "overwhelming evidence that unpublished opinions can be a valuable source of ‘insight’ and ‘information.’" However, the committee took no position on whether the unpublished decisions should have any precedential value, leaving that issue for the courts to decide.
Finally, the committee proposed amendments to various civil rules regarding discovery of electronically stored information. It also proposed changes to Rules 26, 33 and 34. The proposed amendment to Rule 26(f) would require parties to confer on issues relating to disclosure or discovery of electronically stored information, including the form of producing e-files; retention policies relating to e-files; and assertions of privilege after inadvertent production of e-files. The new Rule 33 would clarify that a party may answer an interrogatory involving review of business records by providing access to e-files if the interrogating party can find the information as readily as the responding party. The proposed amendment to Rule 34 would authorize a requesting party to specify the form of production, such as in paper or electronic form, and for the responding party to object. Additionally, the new rule would help prevent massive "dumps" of unorganized e-files by requiring production of documents as they are ordinarily maintained or labeling them to correspond with the categories in the request.
On April 12, 2006, the United States Supreme Court approved these new rules and amendments to the Federal Rules of Appellate and Civil Procedure. The new rules and amendments have been transmitted to Congress and will take effect on December 1, 2006, unless Congress enacts legislation to reject, modify or defer the amendments.
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