The up-or-down decisions are expected at the spring meetings of five advisory committees, which are digesting 400 letters that poured in during the half-year comment period that ended last week. Those committees assist the Judicial Conference of the United States with the intricate and delicate process of overhauling rules for all types and levels of litigation in federal courts.
A dozen ideas for amending or creating rules and forms are under consideration. Some proposals attracted little if any commentary, putting them on a glide path to approval. Others face highly uncertain futures amid voluminous and fervent feedback; especially contentious topics include evidence generated with artificial intelligence, hand-delivery of subpoenas, remote trial testimony and efforts to level the playing field for prosecutors and criminal defense attorneys.
Members of the public — mostly attorneys from advocacy groups, academia and law firms — debated the proposed amendments at recent hearings. But the number of witnesses at those hearings has been dwarfed by the number of observers who submitted written assessments, which add many more layers of feedback for the committees' consideration.
When committee members vote at upcoming meetings, anything's possible. Amendments could be scrapped entirely, held for further study or advanced — with or without revisions — to the Committee on Rules of Practice and Procedure or the Standing Committee. But any major revisions — a distinct possibility, given the commentary on some proposals — might trigger new periods of public comment.
Here, Law360 shares key details to know about the draft changes, the 400 letters and the upcoming committee votes.
Federal Rule of Evidence 707
Among the dozen proposals sent out for public comment, none is more prominent than draft Federal Rule of Evidence 707, a proposed protocol for assessing the reliability of AI-generated information presented without an expert witness.
All five advisory committees originally scheduled two public hearings about their respective amendments, but only the Advisory Committee on Evidence Rules actually ended up holding two hearings. At those hearings, defense and plaintiffs attorneys sometimes aired comparable concerns about Rule 707's conceptual framework, which would apply so-called Daubert standards of reliability in Rule 702
to AI-derived evidence.Rule 707 also elicited dozens of written comments, with one of the most noteworthy letters coming from the U.S. Department of Justice. The DOJ, which has an evidence committee seat, cast the sole dissenting vote last year against the rule's release and voiced reservations at the recent hearings. But its 13-page letter — signed by Deputy Assistant U.S. Attorney General Brendan Chestnut — went much further, forecasting "profound and non-salutary impacts on litigation."
In a letter opposing proposed Federal Rule of Evidence 707, the U.S. Department of Justice used this diagram to illustrate its view that "Rule 707 would serve little purpose" because existing rules apply to relevant evidence. (U.S. Department of Justice)
Despite the pushback, it's far from certain that Rule 707 will be shelved. Civil and criminal litigators, for one, have warned that judges are already accepting AI evidence at face value. And committee leaders have been receptive to suggested improvements, such as deleting the rule's exemption for "simple scientific instruments," which has been widely deemed unnecessary and vague.
Recommendations from Andrea Roth of the University of California, Berkeley School of Law have appeared especially influential. For example, the draft rule would cover "machine-generated evidence," but Roth has suggested it would more precisely capture relevant evidence by instead covering "computer-generated conclusions."
Roth testified at a Jan. 29 hearing, and in a Feb. 16 comment letter she pushed back on several common criticisms, including concerns that Rule 707 would inadvertently facilitate the introduction of AI evidence without a human expert.
"On the contrary," Roth wrote, "the status quo already allows this."
The Advisory Committee on Evidence Rules holds its next regular meeting May 7 in Washington, D.C.
Federal Rule of Civil Procedure 45(b)
If the AI debate demonstrates the difficulty of drafting next-generation rules, the Rule 45(b) debate demonstrates the difficulty of altering generations-old ones. Hundreds of comments — almost all of them critical — have hit the docket for Rule 45(b), which dictates methods for serving subpoenas and has existed in various forms since Franklin D. Roosevelt was president.
An entire industry is modeled on the rule's current stipulation that "serving a subpoena requires delivering a copy to the named person." That industry is now up in arms over amendments that would relax and expand delivery methods; for example, the revised rule would permit "sending a copy to the person's last known address" by mail.
The National Association of Professional Process Servers, which claims more than 2,500 members, blasted the amendments in a Feb. 16 letter. "It is ambiguous as to what qualifies as a 'last known address,'" and the draft "fails to include any safeguards" to ensure service, which will "undoubtedly lead to greater administrative inefficiency and legal challenges," NAPPS wrote.
The trade group also recently announced on LinkedIn that it was "preparing a template for process servers to use, if they choose, to voice their opposition." The Rule 45(b) docket contains numerous letters that utilize a template and cite identical fears about "the economic impact on the professional process-serving industry" and "broader systemic risks" for subpoena enforcement and due process rights.
Another professional organization, the American Association for Justice, which represents the plaintiffs bar, has also sought to mobilize its members. But the AAJ is enthusiastic about the changes, and if anything, it wants them to be even bolder.
Leaders of the AAJ have recently described challenges with serving subpoenas on affluent individuals in gated communities. In a 20-page pamphlet disseminated to members, the association suggested comments could discuss that issue and explore the amendment's potential to "reduce litigation costs" and "improve efficiency."
Federal Rule of Civil Procedure 45(c)
Tweaks to Rule 45(c) would address a Ninth Circuit ruling in 2023 that limits judicial power to compel remote testimony from witnesses not residing sufficiently close to relevant courthouses. The tweaks would confirm that subpoena power extends nationwide, so long as witnesses don't have to travel too far to remotely testify.
Those revisions have sharply divided the plaintiffs and defense bars, mainly because of nascent interest in amending Federal Rule of Civil Procedure 43(a)
. Rule 43 authorizes courts to permit remote testimony "for good cause in compelling circumstances and with appropriate safeguards," but advisers have been looking at deleting the "compelling circumstances" condition.Rules 43 and 45 are "inextricably linked" and should be amended in "one comprehensive package," Lawyers for Civil Justice, a coalition of BigLaw firms and major corporations, wrote in a letter this month.
LCJ added that court approval should be mandatory for Rule 45 subpoenas of remote testimony. Failing to add that condition, LCJ wrote, "would erode judicial control over trial proceedings and confuse courts and parties" about Rule 43's role in court authorization of remote testimony.
A contrary view appeared in a Feb. 16 letter from Lauren Guth Barnes, acting CEO of legal group Public Justice, who wrote that "few seem to legitimately dispute the wisdom" of the Rule 45 revisions. Without greater leeway for remote testimony, Barnes wrote, juries will often be forced to watch deposition tapes that are "stale" and "frankly, boring, generally consisting of disembodied voices and one unmoving head and torso."
The Public Justice lawyer urged the Advisory Committee on Civil Rules — which has a subcommittee devoted to Rules 43 and 45 — to adopt the proposed tweaks to Rule 45 and "continue its work on Rule 43."
A public hearing on the civil rules amendments occurred Jan. 27. The civil rules committee holds its next regular meeting on April 14 in Charlotte, North Carolina.
Federal Rule of Criminal Procedure 17
Rule 17, which deals with subpoenas of testimony and documents, hasn't been meaningfully amended since its adoption in 1944. Proposed changes aim to create a uniform understanding of the rule, which some courts interpret in ways that greatly limit defense counsel access to information from third parties.
The White Collar Crime Committee of the New York City Bar, which in 2022 called for revisions, wrote in a recent comment letter that the amendments would "promote clarity, uniformity, fairness and, ultimately, greater trust in our criminal justice system."
The NYC Bar added, however, that it still wants the advisory panel to adopt its original proposal, which would allow access to third-party materials if a subpoena shows they're "relevant and material to the preparation of the prosecution or defense."
In another recent letter, the National Association of Criminal Defense Lawyers also voiced measured support. While it objected to some details, such as a provision that would allow local court rules to override some elements of the amendments, the changes "would resolve many ambiguities in the current rule and would overall constitute an improvement," the NACDL wrote.
But the changes are also facing considerable pushback. As one example, Paul G. Cassell of the University of Utah's S.J. Quinney College of Law submitted a 44-page letter that called the amendments too focused on white collar fraud cases and perhaps detrimental to "victim-sensitive cases."
"Crime victims will likely lack legal counsel and will often be unable to defend their privacy and other interests against sophisticated defense attorneys raising complex legal arguments," Cassell wrote.
A public hearing on the proposed changes occurred Jan. 22. The Advisory Committee on Criminal Rules holds its next regular meeting April 29 in Washington, D.C.
Federal Rule of Appellate Procedure 15
A new subdivision in Rule 15 is "designed to eliminate a procedural trap," according to a note from the Advisory Committee on Appellate Rules.
At issue are petitions for court review of agency orders. In some circuits, those petitions can be treated as irredeemably premature if someone also petitions an agency for rehearing and isn't successful.
"In these circuits, if a party aggrieved by an agency action does not file a second timely petition for review after the petition for rehearing is denied by the agency, that party will find itself out of time," the committee note said. "Its first petition for review will be dismissed as premature, and the deadline for filing a second petition for review will have passed."
The new subdivision "removes this trap," the note added.
The proposed change to Rule 15 attracted only two short comments, both from supportive individuals who didn't supply any information about their credentials. In one, an individual named Cesar Alvan wrote that it's "important that the amendment still requires someone to file a new amended petition if they want to challenge the agency's decision on the rehearing itself."
"A process like this will remain organized while ensuring that the court can tell which decision is being appealed. Overall, there is less confusion [and] an overall more just system," Alvan wrote.
Officials initially scheduled two public hearings on the proposed changes, but they canceled them. The appellate rules committee holds its next regular meeting April 16 in Charlotte.
Official Bankruptcy Form 106C
The Advisory Committee on Bankruptcy Rules is floating textual tweaks in three areas. Only one area — Form 106C, which debtors use to designate property as off-limits from creditors — drew substantive feedback during the six-month comment period.
An amendment to Form 106C would add entries — fields where information is listed — for two totals: one for the value of debtor-owned property, and one for the amount of the claimed exemption.
In a three-page comment letter, the National Association of Consumer Bankruptcy Attorneys on Feb. 16 offered a few suggestions for polishing up the proposal.
One suggestion deals with language in the two entries. According to the NACBA, the language seems to require one entry to list a specific dollar amount, while allowing the other entry to omit a dollar amount by, for example, saying an asset's value isn't known.
The ambiguity "could support an argument that a debtor cannot list the value of an asset in [one entry] as unknown," even though listing the value as unknown is sometimes "the only honest answer a debtor can give," the association wrote.
In its letter, the NACBA also urged the advisory committee to "rectify the confusion caused by amendments made to the form after Schwab v. Reilly
," a U.S. Supreme Court decision in 2010 dealing with asset exemptions.Although the Schwab v. Reilly majority downplayed a dissent's concerns about implications for asset exemptions, Form 106C "does not offer an easy way to take the steps described by the Schwab majority," and the committee should clarify "how to claim an entire asset as exempt," the association wrote.
The committee scheduled but ultimately canceled two public hearings on the proposed changes. Its next regular meeting is April 15 in Charlotte, North Carolina.
--Editing by Alanna Weissman and Jay Jackson Jr.
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