1. Federal Court Rules & Practice Update

2. Federal Rules of Civil Procedure: 2015 Amendments

3. FRCP 4(m): Summons- Time Limit for Service
If a defendant is not served within days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).
Rule 71.1(d)(3)(A): Condemning Real or Personal Property—Process: Service of Process
Personal Service: When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with Rule 4

4. FRCP 16: Pretrial Conferences; Scheduling; Management
(1) Scheduling Order: Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order:
(A) after receiving parties’ report under Rule 26(f); or
(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means.
(2) Time to Issue: The judge must issue the scheduling order as soon as practicable, but in any event unless the judge finds good cause for delay, the judge must issue it within the earlier of days after any defendant has been served with the complaint or days after any defendant has appeared.
(3) Contents of the Order:
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(B) Permitted Contents: The scheduling order may:
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(iii) provide for disclosure, or discovery or preservation of electronically stored information;
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(vi) set dates for pretrial conferences and for trial; and
(vii) include other appropriate matters.

5. FRCP Rule 26: General Provisions Governing Discovery
(b) Discovery Scope and Limits
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b).

6. FRCP Rule 26: General Provisions Governing Discovery, cont.
(b) Discovery Scope and Limits
(2) Limitations on Frequency and Extent
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(C) When Required: On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(iii) the burden or expense of proposed discovery is outside the scope permitted by Rule 26(b)(1) outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issue
(c) Protective Orders
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery

7. FRCP 26: General Provisions Governing Discovery, cont.
(d) Timing and Sequence of Discovery
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(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served
(B) When Considered Served. The request is considered to have been first served at the first Rule 26(f) conference.
(3) Sequence. Unless, on motion, the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery

8. FRCP 26: General Provisions Governing Discovery, Cont.
(f) Conference of the Parties; Planning for Discovery
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(3) Discovery Plan: A discovery plan must state the parties’ views and proposals on:
(C) any issues about disclosure, or discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial—preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502**;
**FRE 502 focuses on disclosures of communication or information covered by the attorney-client privilege and/or work-product protection

9. FRCP 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
(b) Procedure
(2) Responses and Objections
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or—if the request was delivered under Rule 26(d)(2)—within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

10. FRCP 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(a) Motion for an Order Compelling Disclosure or Discovery
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(3) Specific Motions.
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.

11. FRCP 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions, cont.
(e) Failure to Provide Preserve Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may;
(A) presume that the information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.

12. Federal Rules of Civil Procedure: 2016 Amendments

13. FRCP 4(m): Summons- Time Limit for Service
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
*Exempts corporate entities in a foreign territory from the 90-day rule.

14. FRCP 6: Computing and Extending Time
(d) Additional time after certain kinds of service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C)(mail), (D) (leaving with the clerk), (E), or (F)(other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).
*Eliminates the three-day rule for electronic service

15. FRCP 82: Jurisdiction and Venue Unaffected
These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is not a civil action for purposes of 28 U.S.C. §§  governed by 28 U.S.C. § 1390.
*The amendments to Rule 82 recognize the revisions resulting from the enactment of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“the Act”).
*The Act abolished the venue distinctions between “local” and “transitory” actions by repealing 28 U.S.C. § The Act also enacted 28 U.S.C. § 1390, which implemented general venue provisions, clarified that admiralty actions are excluded from the general venue provisions, and explained that the venue statutes do not dictate how venue is determined for cases removed to federal court.

16. Federal Rules of Civil Procedure: Potential 2018 Amendments

17. Rule 5: Serving and Filing Pleadings and Other Papers
* * * * *
(b) SERVICE: HOW MADE.
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
(E) sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means if that the person consented to in writing—in either of which events service is complete upon transmission filing or sending, but is not effective if the serving party filer or sender learns that it did not reach the person to be served; or
(3) Using Court Facilities. If a local rule so authorizes, a party may use the court’s transmission facilities to make service under Rule 5(B)(2)(E).
[Abrogated 24 (Apr. __, 2018, eff. Dec. 1, 2018.)]

18. Rule 5, cont.
(d) FILING.
(1) Required Filings; Certificate of Service.
(A) Papers after the Complaint. Any paper after the complaint that is required to be served — together with a certificate of service — must be filed within no later than a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.
(B) Certificate of Service. A certificate of service must be filed within a reasonable time after service, but a notice of electronic filing constitutes a certificate of service on any person served by the court’s electronic-filing system. No certificate of service is required when a paper is served by filing it with the court’s electronic-filing system. When a paper that is required to be served is served by other means:
(i) if the paper is filed, a certificate of service must be filed with it or within a reasonable time after service, and
(ii) if the paper is not filed, a certificate of service need not be filed unless filing is required by local rule or court order.

19. Rule 5, cont. (d) FILING. * * * * *
(2) Nonelectronic Filing. How Filing is Made in General. A paper not filed electronically is filed by delivering it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.
(3) Electronic Filing, and Signing, or Verification. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. A local rule may require electronic filing only if reasonable exceptions are allowed.
(A) By a Represented Person—Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.
(B) By an Unrepresented Person—When Allowed or Required. A person not represented by an attorney:
(i) may file electronically only if allowed by court order or by local rule; and
(ii) may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.
(C) Signing. The user name and password of an attorney of record, together with the attorney’s name on a signature block, serves as the attorney’s signature. An authorized filing made through a person’s electronic filing account, together with the person’s name on a signature block, constitutes the person’s signature.
(D) Same as a Written Paper. A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.

20. Rule 23: Class Actions
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses
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(2) Notice.
(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3)—or upon ordering notice under Rule 23(e)(1) to a class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice may be by one or more of the following: United States mail, electronic means, or other appropriate means. The notice must clearly and concisely state in plain, easily understood language:

21. Rule 23, cont.
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) Notice to the Class
(A) Information That Parties Must Provide to the Court. The parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.
(B) Grounds for a Decision to Give Notice. The court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties' showing that the court will likely be able to:
(i) approve the proposal under Rule 23(e)(2); and
(ii) certify the class for purposes of judgment on the proposal.
(2) Approval of the Proposal. If the proposal would bind class members under Rule 23(c)(3), the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether:.
(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal
(ii) the effectiveness of any the proposed method of distributing relief to the class, including the method of processing class-member claims, if required;
(iii) the terms of any proposed award of attorney's fees, including timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members are treated equitably relative to each other.

22. Rule 23, cont.
(3) Identification of Side Agreements. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) New Opportunity to Be Excluded. If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Class-Member Objections.
(A) In General. Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval. The objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specificity the grounds for the objection.
(B) Court Approval Required for Payment In Connection With an Objection to an Objector or Objector's Counsel. Unless approved by the court after a hearing, no payment or other consideration may be provided to an objector or objector's counsel in connection with:
(i) forgoing or withdrawing an objection, or
(ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.
(C) Procedure for Approval After an Appeal. If approval under Rule 23(e)(5)(B) has not been obtained before an appeal is docketed in the court of appeals, the procedure of Rule 62.1 applies while the appeal remains pending.

23. Rule 23, continued
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). if a petition for to appeal is filed A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered, or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States' behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
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24. Rule 62: Stay of Proceedings to Enforce a Judgment
(a) AUTOMATIC STAY.; Exceptions for Injunctions, Receiverships, and Patent Accountings.
Except as provided in Rule 62(c) and (d), stated in this rule, no execution may issue on a judgment, nor may and proceedings be taken to enforce it are stayed for 30 days until 14 days have passed after its entry, unless the court orders otherwise. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an injunction or a receivership; or
(2) a judgment or order that directs an accounting in an action for patent infringement.
(b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment — or any proceedings to enforce it — pending disposition of any of the following motions:
(1) under Rule 50, for judgment as a matter of law;
(2) under Rule 52(b), to amend the findings or for additional findings;
(3) under Rule 59, for a new trial or to alter or amend a judgment; or
(4) under Rule 60, for relief from a judgment or order.
(b) STAY BY BOND OR OTHER SECURITY. At any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay takes effect when the court approves the bond or other security and remains in effect for the time specified in the bond or security.

25. Rule 62, continued
(c) STAY OF AN INJUNCTION, RECEIVERSHIP, OR PATENT ACCOUNTING ORDER. Unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an injunction or receivership; or
(2) a judgment or order that directs an accounting in an action for patent infringement.
(d) INJUNCTION PENDING AN APPEAL. While an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or denies refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their signatures.
(d) STAY WITH BOND ON APPEAL. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond.

26. Rule 65. 1: Proceedings Against a Surety or Other Security Provider
Whenever these rules (including the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions) require or allow a party to give security, and security is given through a bond, other security, or other undertaking, with one or more sureties or other security providers, each surety provider submits to the court’s jurisdiction and irrevocably appoints the court clerk as its agent for receiving service of any papers that affect its liability on the bond, or undertaking, or other security. The surety’s security provider’s liability may be enforced on motion without an independent action. The motion and any notice that the court orders may be served on the court clerk, who must promptly mail a copy of each to every surety security provider whose address is known.

27. Federal Rules of Criminal Procedure: 2016 Amendments

28. Rule 4: Arrest Warrant or Summons on a Complaint
(a) Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If an individual defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant. If an organizational defendant fails to appear in response to a summons, a judge may take any action authorize1d by United States law.

29. Rule 4, cont. (c) Execution or Service, and Return. ***
(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest. A summons to an organization under Rule 4(c)(3)(D) may also be served at a place not within a judicial district of the United States.

30. Rule 4, cont. (c) Execution or Service, and Return. (3) Manner. * * *
(C) A summons is served on an organization in a judicial district of the United States by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy If the agent is one authorized by statute and the statute so requires, a copy must also be mailed to the organization organization’s last known address within the district or to its principal place of business elsewhere in the United States.
(D) A summons is served on an organization not within a judicial district of the United States:
(i) by delivering a copy, in a manner authorized by the foreign jurisdiction’s law, to an officer, to a managing or general agent, or to an agent appointed or legally authorized to receive service of process; or
(ii) by any other means that gives notice, including one that is:
(a) stipulated by the parties;
(b) undertaken by a foreign authority in response to a letter rogatory, a letter of request, or a request submitted under an applicable international agreement; or
(c) permitted by an applicable international agreement.

31. Rule 41: Search and Seizure
(b) Authority to Issue a Warrant Venue for a Warrant Application. * * *
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means; or
(B) in an investigation of a violation on of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

32. Rule 41, cont. (f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property. * * *
(C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant and receipt on the person whose property was searched or who possessed the information that was seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person.

33. Rule 45: Computing and Extending Time
(c) Additional Time After Certain Kinds of Service. Whenever a party must or may act within a specified period time after service being served and service is made in the manner provided under Federal Rule of Civil Procedure 5(b)(2)(C) (mailing), (D) (leaving with the clerk), (E), or (F) (other means consented to), 3 days are added after the period would otherwise expire under subdivision (a).

34. Federal Rules of Criminal Procedure: Potential 2018 Amendments

35. Rule 12.4: Disclosure Statement
(a) Who Must File.
(1) Nongovernmental Corporate Party. Any nongovernmental corporate party to a proceeding in a district court must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.
(2) Organizational Victim. Unless the government shows good cause, it must file a statement identifying any organizational victim of the alleged criminal activity. If an organization is a victim of the alleged criminal activity, the government must file a statement identifying the victim. If the organizational victim is a corporation, the statement must also disclose the information required by Rule 12.4(a)(1) to the extent it can be obtained through due diligence.
(b) Time for to Fileing; Supplemental Later Filing. A party must:
(1) file the Rule 12.4(a) statement within 28 days after upon the defendant’s initial appearance; and
(2) promptly file a later supplemental statement if any required information changes upon any change in the information that the statement requires.

36. Rule 45: Computing and Extending Time
(c) Additional Time After Certain Kinds of Service. Whenever a party must or may act within a specified time after being served and service is made under Federal Rule of Civil Criminal Procedure 49(a)(4)(C), (D), and (E) 5(b)(2)(C) (mailing), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under subdivision (a).

37. Rule 49: Serving and Filing Papers
(a) Service on a Party.
(1) What is When Required. A party must serve on every other party Each of the following must be served on every party: any written motion (other than one to be heard ex parte), written notice, designation of the record on appeal, or similar paper.
(b) How Made. Service must be made in the manner provided for a civil action.
(2) Serving a Party’s Attorney. Unless the court orders otherwise, Wwhen these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.
(3) Service by Electronic Means.
(A) Using the Court’s Electronic Filing System. A party represented by an attorney may serve a paper on a registered user by filing it with the court’s electronic-filing system. A party not represented by an attorney may do so only if allowed by court order or local rule. Service is complete upon filing, but is not effective if the serving party learns that it did not reach the person to be served.
(B) Using Other Electronic Means. A paper may be served by any other electronic means that the person consented to in writing. Service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served.
(4) Service by Nonelectronic Means. A paper may be served by:
(A) handing it to the person;
(B) leaving it:
(i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(C) mailing it to the person’s last known address—in which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no known address; or
(E) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

38. Rule 49, cont.
(b) Filing.
(1) When Required; Certificate of Service. Any paper that is required to be served must be filed no later than a reasonable time after service. No certificate of service is required when a paper is served by filing it with the court’s electronic filing system. When a paper is served by other means, a certificate of service must be filed with it or within a reasonable time after service or filing.
(2) Means of Filing.
(A) Electronically. A paper is filed electronically by filing it with the court’s electronic-filing system. An authorized filing made through a person’s electronic filing account, together with the person’s name on a signature block, serves as the person’s signature. A paper filed electronically is written or in writing under these rules.
(B) Nonelectronically. A paper not filed electronically is filed by delivering it:
(i) to the clerk; or
(ii) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.
(3) Means Used by Represented and Unrepresented Parties.
(A) Represented Party. A party represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.
(B) Unrepresented Party. A party not represented by an attorney must file nonelectronically, unless allowed to file electronically by court order or local rule.
(4) Signature. Every written motion and other paper must be signed by at least one attorney of record in the attorney’s name—or by a person filing a paper if the person is not represented by an attorney. The paper must state the signer’s address, address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or person’s attention.
(5) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

39. Rule 49, cont.
(c) Service and Filing by Nonparties. A nonparty may serve and file a paper only if doing so is required or permitted by law. A nonparty must serve every party as required by Rule 49(a), but may use the court’s electronic-filing system only if allowed by court order or local rule.
(d) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk must provide notice in a manner provided for in a civil action serve notice of the entry on each party as required by Rule 49(a). A party also may serve notice of the entry by the same means. Except as Federal Rule of Appellate Procedure 4(b) provides otherwise, the clerk’s failure to give notice does not affect the time to appeal, or relieve—or authorize the court to relieve—a party’s failure to appeal within the allowed time.
(d) Filing. A party must file with the court a copy of any paper the party is required to serve. A paper must be filed in a manner provided for in a civil action.
(e) Electronic Service and Filing. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. A local rule may require electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is written or in writing under these rules.

40. Proposed 2019 Amendment to the Federal Rules of Criminal Procedure
Published for comment through February 15, 2018
Rule Pretrial Discovery Conference and Modification
(a) Discovery Conference. No later than 14 days after the arraignment the attorneys for the government and the defendant must confer, and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.
(b) Modification of Discovery. After the discovery conference, one or both parties may ask the court to determine or modify the timing, manner, or other aspects of disclosure to facilitate preparation for trial.

41. Federal Rules of Evidence: 2017 Amendments

42. FRE 803(16): Exceptions to the Rule Against Hearsay – Statements in Ancient Documents
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(16) Statements in Ancient Documents—A statement in a document that is at least 20 years old was prepared before January 1, 1998, and whose authenticity is established

43. FRE Rule 902(13): Evidence that is Self-Authenticating: Certified Records Generated by an Electronic Process or System
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(13) Certified Records Generated by an Electronic Process or System: A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

44. FRE Rule 902(14): Evidence that is Self-Authenticating: Certified Data Copied from an Electronic Device, Storage Medium, or File
The following items of evidence are self-authenticating; they require not extrinsic evidence of authenticity in order to be admitted:
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File: Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

45. FRE 902(13) and 902(14) requirements
Both rules require that the individual bringing forth the evidence must comply with the certification requirements under FRE 902(11) or 902(12):
Rule 902(11): The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court.
Rule 803(6)(A)-(C): A record of an act, event, condition, opinion, or diagnosis if:
(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit, and
(C) Making the record was a regular practice of that activity
Rule 902(12): In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed.

46. FRE 902(13) and 902(14) requirements, cont.
The individual must also comply with the notice requirements under FRE 902(11):
“Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.”

47. Proposed Amendment to the Federal Rules of Evidence
Published for comment through February 15, 2018
Rule Residual Exception
(a) In General. Under the following circumstances conditions, a hearsay statement is not excluded by the rule against hearsay: even if
(1) the statement is not specifically covered by a hearsay exception in Rule 803 or 804: ;
(1 2) the statement has equivalent circumstantial guarantees of trustworthiness the court determines that it is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and any evidence corroborating the statement; and
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the an intent to offer the statement and its particulars, including the declarant’s name and address, including its substance and the declarant’s name—so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

48. Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017
The first major proposed reform since the Class Action Fairness Act passed in 2005
Passed by the House on March 9, 2017
Purposes:
“Assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims.”
“Diminish abuses in class action and mass tort litigation that are undermining the integrity of the United States legal system.”
“Restore the intent of the framers of the United States Constitution by ensuring federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.”

49. Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, cont.
Highlights:
Prohibits the federal court from granting certification of a class action seeking monetary relief for personal injury or economic loss unless the party seeking the class action proves that each class member suffered the same type and scope of injury as the named class representatives.
Prohibits the federal court from granting certification of a class action unless the class is defined with objective criteria.
Requires the class to provide a reliable and feasible way for the court to
Determine whether the class members falls within the class definition; and
Distribute any monetary relief to the majority of the class members
Requires putative class action complaints to include numerous disclosures to uncover and prohibit what the bill deems “conflicts of interest” between class counsel and class representatives
Requires discovery to be stayed during the pendency of any motion to transfer, motion to dismiss, motion to strike class allegations, or other motion to dispose of the class allegations
Requires class counsel to disclose third-party litigation funding
Limits MDLs to pretrial proceedings only by prohibiting the use of MDL procedures for any trial “unless all parties to the civil action consent to trial of the specific case sought to be tried.”

50. Upcoming Supreme Court Cases

51. Stephanie C. Artis v. District of ColumbiaNo
Oral Argument: November 1, 2017
Statute at issue: 28 U.S.C. § 1367
Section 1367 of Title 28 authorizes federal district courts in certain circumstances to exercise supplemental jurisdiction over claims arising under State law. Section 1367 further provides that “[t]he period of limitations for any [such] claim shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d).
Question Presented:
Whether the tolling provision in §1367(d) suspends the limitations period for the state-law claim while the federal suit is pending and for thirty days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.

52. Charmaine Hamer v. Neighborhood Housing Services of Chicago & Fannie MaeNo
Oral Argument: October 10, 2017
Statute at issue: Federal Rule of Appellate Procedure 4(a)(5)(C)
Fed.R.App.P. 4(a)(5)(C) provides that “[n]o extension [of time to file a notice of appeal in a civil case] under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”
Question Presented:
Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, and therefore subject to forfeiture or waiver by an appellee, or subject to equitable considerations such as the unique-circumstances doctrine.

53. David Patchak v. Ryan Zinke, Secretary of the Interior, et al.No
Oral Argument: November 7, 2017
Question Presented:
Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles?