COMMITTEE ON RULES OF PRACTICE AND PROCEDURE Phoenix, AZ January 3, 2019 TABLE OF CONTENTS AGENDA ........................................................................................................................................5 1. OPENING BUSINESS A. Welcome and Opening Remarks ..................................................................23 B. Status of Rules Amendments Chart Tracking Proposed Rules Amendments ........................................27 September 2018 Report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States .....................35 C. Draft Minutes of the June 12, 2018 Meeting of the Committee on Rules of Practice and Procedure .............................................................................69 2. ADVISORY COMMITTEE ON APPELLATE RULES A. Report of the Advisory Committee on Appellate Rules (December 5, 2018) ......................................................................................95 B. Draft Minutes of the October 26, 2018 Meeting of the Advisory Committee on Appellate Rules ...................................................................109 C. Proposed Amendments to Rules 35 and 40 Published for Public Comment (August 2018).............................................................................125 3. ADVISORY COMMITTEE ON BANKRUPTCY RULES A. Report of the Advisory Committee on Bankruptcy Rules (December 3, 2018) ....................................................................................133 B. Draft Minutes of the September 17, 2018 Meeting of the Advisory Committee on Bankruptcy Rules ................................................................141 C. Proposed Procedures for Restyling the Federal Rules of Bankruptcy Procedure ....................................................................................................151 Committee on Rules of Practice & Procedure | January 3, 2019 Page 3 of 328 4. ADVISORY COMMITTEE ON CIVIL RULES A. Report of the Advisory Committee on Civil Rules (December 4, 2018) ....................................................................................157 B. Draft Minutes of the November 1, 2018 Meeting of the Advisory Committee on Civil Rules ...........................................................................201 5. ADVISORY COMMITTEE ON CRIMINAL RULES A. Report of the Advisory Committee on Criminal Rules (December 4, 2018) ....................................................................................243 B. Draft Minutes of the October 10, 2018 Meeting of the Advisory Committee on Criminal Rules ....................................................................251 6. ADVISORY COMMITTEE ON EVIDENCE RULES A. Report of the Advisory Committee on Evidence Rules (November 15, 2018) ..................................................................................273 B. Draft Minutes of the October 19, 2018 Meeting of the Advisory Committee on Evidence Rules ....................................................................281 7. OTHER COMMITTEE BUSINESS A. Legislative Update ......................................................................................297 B. Judiciary Strategic Planning .......................................................................301 Attachment 1: Summary of Committee Strategic Initiatives ................303 Attachment 2: Summary Report of the September 12, 2018 Long-Range Planning Meeting .....................................309 C. Memorandum to the Standing Committee from Catherine T. Struve Regarding Rulemaking Procedures and Outside Submissions (December 13, 2018) ..................................................................................317 Attachment: Draft Website Language ..................................................325 Committee on Rules of Practice & Procedure | January 3, 2019 Page 4 of 328 JUDICIAL CONFERENCE OF THE UNITED STATES COMMITTEE ON RULES OF PRACTICE AND PROCEDURE JANUARY 3, 2019 AGENDA 1. Opening Business A. Welcome and Opening Remarks ‒ Judge David G. Campbell, Chair B. Status of Rules Amendments (p. 25) • Report on new rules amendments effective December 1, 2018 • Report on rules approved by the Judicial Conference at its September 2018 session and transmitted to the Supreme Court on October 24, 2018 (potential effective date December 1, 2019) • Report on rules out for public comment, including schedule of upcoming public hearings (potential effective date December 1, 2020) C. ACTION: The Committee will be asked to approve the minutes of the June 12, 2018 Committee meeting (p. 69) 2. Report of the Advisory Committee on Appellate Rules ‒ Judge Michael A. Chagares, Chair (p. 95) Information items • Proposed amendments to Rule 3 and the application of the merger rule • Proposal to Amend Rule 42(b) and agreed dismissals • Comprehensive review of Rules 35 and 40 • Possible amendments to Rule 4(a)(5)(C) in light of the Supreme Court’s decision in Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13 (2017) • Consideration of memo from the Committee on Court Administration and Case Management regarding privacy concerns in Social Security and immigration opinions • Consideration of suggestion regarding how to manage the vote of a judge who leaves the bench, whether by death, resignation, conviction at an impeachment trial, or expiration of a recess appointment Committee on Rules of Practice & Procedure | January 3, 2019 Page 5 of 328 3. Report of the Advisory Committee on Bankruptcy Rules ‒ Judge Dennis Dow, Chair (p. 133) ACTION: The Committee will be asked to approve a recommendation to undertake restyling of the Federal Rules of Bankruptcy Procedure Information items • Expansion of the use of Electronic Noticing and Service • Proposed amendment to Official Form 113 (Chapter 13 Plan Form) 4. Report of the Advisory Committee on Civil Rules ‒ Judge John D. Bates, Chair (p. 157) Information items • Ongoing projects o Report on the work of the Subcommittee on Multidistrict Litigation . Consideration of suggestions related to disclosure of third party financing o Report on the work of the Subcommittee on Social Security Disability Review Actions • Update on items considered and either retained for further study or removed from the agenda o Rule 73 (Magistrate Judges: Trial by Consent; Appeal) – consideration of suggestions related to consent to trial by a magistrate judge o Rule 7.1 (Disclosure Statement) – consideration of suggestions to expand the scope of required disclosure statements, including amending Rule 7.1 to include a nongovernmental corporation that seeks to intervene o Hall v. Hall, 138 S. Ct. 1118 (2018), and final judgment appeals in consolidated actions 5. Report of the Advisory Committee on Criminal Rules ‒ Judge Donald W. Molloy, Chair (p. 243) Information items • Ongoing projects o Rule 16 (Discovery and Inspection) – consideration of suggestions to expand pretrial discovery of expert witnesses . Mini-conference planned for February 15, 2019 (Dallas, Texas) o Report on the work of the Cooperators Subcommittee and the Director’s Task Force on Protecting Cooperators • Update on items considered and either retained for further study or removed from the agenda Committee on Rules of Practice & Procedure | January 3, 2019 Page 6 of 328 o Rule 43(a) (Defendant’s Presence – When Required) – subcommittee formed to consider possible exception to the requirement of physical presence for plea or sentence in light of United States v. Bethea, 888 F.3d 864 (7th Cir. 2018) o Time for ruling on habeas motions o Disclosure of defendant’s full name and date of birth 6. Report of the Advisory Committee on Evidence Rules ‒ Judge Debra Ann Livingston, Chair (p. 273) Information items • Roundtable discussion regarding: 1) Rule 702 and forensic evidence; 2) Rule 702 and sufficiency of basis and reliability of methodology under Rule 104(a); 3) Rule 106; and 4) Rule 615, the rule on excluding witnesses from trial until they testify, and possible amendments to each of these rules • Proposed amendments to Rule 404(b) published for public comment in August 2018. • Consideration of suggestion of a possible amendment to Rule 607 to incorporate portions of Maryland Rule of Evidence 616, which provides a “roadmap” to guide judges and practitioners on the rules that are pertinent to all forms of impeachment and rehabilitation, into the Federal Rules of Evidence • Monitoring of case law developments after Crawford v. Washington 7. Other Committee Business A. Legislative Update – Julie Wilson, Counsel B. Judiciary Strategic Planning – The Committee will discuss a report of the September12, 2018 long-range planning meeting of Judicial Conference committee chairs and members of the Executive Committee. (p. 301) C. Public Comment – The Committee will discuss procedures for consideration of public comments received at different stages of the Rules Enabling Act process. (p. 317) D. Next Meeting – June 25, 2019 (Washington, DC) Committee on Rules of Practice & Procedure | January 3, 2019 Page 7 of 328 THIS PAGE INTENTIONALLY BLANK Committee on Rules of Practice & Procedure | January 3, 2019 Page 8 of 328 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE (Standing Committee) Chair, Standing Committee Honorable David G. Campbell United States District Court Sandra Day O'Connor United States Courthouse 401 West Washington Street, SPC 58 Phoenix, AZ 85003-2156 Reporter, Standing Committee Professor Daniel R. Coquillette Boston College Law School 885 Centre Street Newton Centre, MA 02459 Associate Reporter, Standing