Get ready for new methods of computing time periods in federal court litigation. On March 26, 2009, the U.S. Supreme Court approved proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will change many time periods set out in these rules and will also change the methods of computing time under these rules. The rules will take effect on December 1, 2009, absent congressional action to reject, modify, or defer the amendments.
The Federal Rules' comprehensive time-computation project was undertaken in response to frequent complaints regarding the time and anxiety and the risk of error inherent in current time computation methods. Billed as "minor" changes, most proposed rules will further the following principles (1) a "days are days" approach to counting time periods, which will eliminate the current method of omitting intermediate holidays and weekends when the time period is short; (2) a lengthening of shorter time periods to compensate for the new "days are days" approach; and (3) a preference for providing time periods that are less than 30 days in multiples of 7 so that deadlines will less frequently fall on weekends.
In other time-computation changes, the proposed amendments to the civil rules will clarify how to count forward when a time period is measured after an event and a deadline falls on a weekend or holiday (e.g., 14 days after receipt of a motion); how to count backward when a time period is measured before an event and the deadline falls on a weekend or holiday (e.g., at least 21 days before a scheduling conference is to be held); and how to compute hourly time periods. The proposed civil rules will also create filing deadlines for electronic filings: Generally, unless a statute or rule provides otherwise, the last day of a time period for an electronic filing will end at midnight in the court's time zone. Explanations of the new rules and the proposed language can be found here.
Additionally, Congress passed H.R. 1626, which amends 28 statutory deadlines to conform with the proposed time-computation amendments to various Federal Rules, and President Obama signed H.R. 1626 on May 7, 2009. The statutory changes, like the proposed amendments to the Federal Appellate, Bankruptcy, Civil, and Criminal Procedural Rules, have an effective date of December 1, 2009. The Act and the amended statutes can be viewed here.
At first glance, these rules appear to be no more than mere counting changes. But take a closer look. Each set of amended rules — appellate procedure, bankruptcy procedure, civil procedure, and criminal procedure — include rules of more substance.
In addition to the relatively "minor" time-computation changes, for example, some of the proposed new Federal Rules would have greater impact as follows:
- Proposed Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12.1 – Proposed Civil Rule 62.1 would provide a consistent procedure for obtaining an "indicative ruling" from a district court judge when a case is on appeal. When a case is appealed from a district court, the district court loses jurisdiction to consider issues involving the case, but a practice has arisen in most circuits that permits district courts to make an "indicative ruling," i.e., to indicate the ruling it would make if it retained jurisdiction. Proposed Civil Rule 62.1 will provide a uniform procedure for the federal courts that will permit the district court to defer ruling, deny the motion, or indicate either that the motion raises a substantial issue or that it would be inclined to grant the motion if the case were remanded. Requests for indicative rulings are typically prompted by Rule 60(b) motions for relief from order or judgment that are filed after an appeal has been granted. Proposed Fed. R. App. P. 12.1 is consistent with Civil Rule 62.1 and facilitates remand to the district court when the district court indicates that it would grant the motion if the appellate court remands for that purpose or indicates that the motion raises a substantial issue.
- Proposed Amendment to Fed. R. Civ. P. 15(a) — Changes the time period for amending, as of course, a pleading to which a responsive pleading is required.
- Proposed Amendment to Fed. R. Civ. P. 48 — Permits a court to poll the jury individually and requires the court to do so on request of a party.
- Proposed Amendment to Fed. R. Civ. P. 50, 52, 59(b), (d), (e) – Changes current 10-day time periods to 28-day time periods for the following:
- motions for judgment notwithstanding the verdict (renewed motion for judgment as a matter of law) under Rule 50(b),
- motions to amend a judge's findings of fact following the entry of judgment in a bench trial under Rule 52;
- motions for a new trial or to amend or alter a judgment in a jury trial, under Rule 59.
- Proposed Amendment to Fed. R. Crim. P. 41 — Proposed Criminal Rule 41 is amended to provide clarification on how warrant procedures apply to seizure of electronically stored information (ESI). Rule 41 adopts a "two-stage" procedure. It authorizes (1) a first-stage seizure of the electronic storage media or seizure and copying of ESI; and (2) a second-stage review of the medium or ESI for information consistent with the scope of the warrant, at an offsite location.
